Downs Law Firm, P.C.

Special Needs Trust

How To Choose a Guardian for My Children

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Selecting appropriate guardians will ensure that your minor children are cared for, if you pass away.

How do you choose a guardian to care for your minor children? Who wants to think about a situation where their young children are left to mourn their parents and live with friends or relatives? However, choosing a guardian to raise your children and manage their inheritance is crucial. If you don’t do it, you leave the decision to the court.

U.S. News and World Report’s recent article “How to Choose a Guardian for Your Child” says that, at worst, forgetting to name a guardian can mean a long court proceeding. This can be expensive, cause stress in family relationships, and put your children in guardianship limbo.

I am one of eight children, and my wife is one of ten children. We had a very difficult time sorting out the best choice. Determining the best choice can be paralyzing. However, picking the least bad choice is a little less daunting.

The guardian of the person is the daily caretaker who will make sure your child gets health care, education, housing, and all other needs met.

In your will or living trust, you will also select someone to manage the estate, which can provide a series of checks and balances that can help if you are concerned about the misuse of your child’s funds.

You may want the guardian of the estate to have good money-management skills, but they can get help if needed. However, there is no substitute for character; they need to be trustworthy. The guardian of the person may be someone who shares your same values, has the energy to raise a child, and is close by so your child doesn’t have to lose the familiar comforts of their school and neighborhood.

People often name parents to be a guardian. Consider the age of the parents. They may be fine now, but do the math and determine how old they will be when the child is sixteen. Could they still handle a parental role then?

You should also name backup guardians, in the event that the primary guardian is unable or unwilling to take on the responsibility. You should speak with your guardians ahead of time and make certain they understand the responsibility and are willing to take on the task of helping care for your children if you pass away.

In most states, you’ll need to name your guardian or guardians as part of your will. It’s important to make a decision, however imperfect, to choose a guardian for your children.

Talk to an experienced estate planning attorney with any questions, and draft a legal will with the terms of guardianship included, along with a power of attorney and health care power of attorney. If you need to create a trust for your child(ren), don’t forget to fund it.

Finally, what do you tell the guardians? I recommend not telling people where they are in line, as in first, second, or third.  Just ask if they are willing to be on the list.

If you later see something that makes you want to change the order, do you want to then inform someone that they are down on the list? You won’t have to unless you have already let them know the order.

Reference: U.S. News and World Report (June 4, 2019) “How to Choose a Guardian for Your Child”