What to Think About When Naming Permanent Guardians
Most estate planning attorneys will encourage you to set up estate plans for many reasons:
- to protect against probate;
- to plan for incapacity;
- to create asset protection;
- to further tax planning;
- if you have a child under the age of 18, to plan for their guardianship in the event that both parents become incapacitated or unexpectedly pass away.
I want to focus on the last reason because, as a parent (and estate planning lawyer), I think it is one of the biggest gifts you can give your child.
I’m a mother of a bright, beautiful little girl. She’s nearly three years old, and she is my life, the reason I breathe. Oftentimes, as all parents do, I find myself worrying about this little girl…. worrying whether she ate enough, whether she slept enough, if she is healthy, if she is happy. Although she has not started school, I worry about her education, and wonder what kind of person she will be when she grows up. As parents, we may wonder whether we are teaching our children the right values, and what it means to be a good person. We may wonder what they will be when they grow up and what their contributions to society will be. These are things all parents worry about.
I always think about all the great things this little girl will do for herself, her family, and the world, and always imagine myself standing right next to her every step of the way. I always imagine myself being there for her, guiding her and supporting her. I can’t imagine my life without her. I will do anything and everything in my power to make sure she is always safe, healthy, and happy. For as long as I live.
Then I remember the reality of life. Life is unpredictable. Death is inevitable. For some, death comes “too soon.”
What happens to my child when my husband and I are no longer alive? What if we are both taken from her when she is still a child? Who will take care of our precious little girl in our absence? Who will make sure she is safe and that she feels loved? Who will raise her the way we, as her parents, want her to be raised? Many parents don’t think about these things because it is depressing. No one wants to leave their child orphaned, stuck in the foster care system, or in the hands of the wrong family member. These are things all parents should worry about, and need to plan for.
All parents should put in place a plan to ensure that their beloved child is taken care of by, who, they think, would be the best “guardian.” Personally, I believe that these guardians will be the next best thing to a “parent” in our absence.
More often than not, clients with minor children come to us with a list of people they believe would be the best guardians for their children. Sometimes, they may not have a list at all. Perhaps they are not sure what to consider. The choice of your children’s legal guardian is highly personal, and, while we may not know you and your family’s dynamics, there are some considerations we can point out for you. Some of these may be more important than others, but then again, you know best what works, or doesn’t work, for your family.
- Plan for today
Clients often talk about the future, and planning for things that may happen 5-10 years from today. I always stop them and remind them to think about and plan for today, tonight, right now. If you were not here tomorrow morning, who would be the best guardian for your child, Today?
This may be best explained with an example. Ten-year-old Johnny was born and raised in sunny Southern California, near friends and family. One day, his parents, Doug and Kim, died in a tragic car accident travelling down the 405 freeway. Johnny’s world has no doubt just come crashing down. Doug and Kim nominated Kim’s parents in Alaska as the first choice of permanent guardians. The last time Johnny went to Alaska and saw his grandparents was when he was 6 years old.
This is the perfect scenario where we would have advised Doug and Kim to consider their choice of guardians. Did they really want to relocate Johnny from Southern California, and move him away from all of his uncles, aunts, cousins, and friends? Maybe, maybe not. As long as Doug and Kim considered their choices, that’s what matters ultimately. Sometimes we can’t control geography, but it should be considered, especially if the child is finishing school, or has created a strong group of peers around him or her.
Consider this when naming your guardians – how will your child deal with moving to a new state, or a new country, after having just lost their parents. Think about the geographic location of the guardians you are nominating. There is no right or wrong answer, but it is a consideration.
- Religion, Values, Beliefs, Parenting style
Does your guardian share your values and beliefs? Will they raise your child per your wishes? How do they feel about your parenting style? Will they continue to teach your children about your religion? How will they raise your child? Will they raise your child how you want them to be raised? What are their views on money? Discipline?
Sometimes, parents choose guardians who are well-off simply because they think their child will be happier in the hands of someone who has money. This is far from true, and can even lead to an opposite outcome! As I always tell my clients, “Money is your responsibility, not your guardians.” (More on this below). Pick the person who will love your child the best.
- Age of Guardians
When nominating a guardian, consider their age as well – are they too old? Are they too young? Can they keep up with your child? Have they ever raised a child? Is your 75-year-old mother mentally and physically up to the task of raising an energetic 10-year-old boy? How long will this 75-year-old grandmother be around? Will your child experience another loss of a “parent” before he becomes an adult?
What about your brother who is single and never been married? Does he have experience with children? Will he be able to take care of all of your children? Is he the best choice just because he is family?
Similarly, is your 19-year-old daughter going to be the best guardian for your 10-year-old son. In theory, it may seem like a good idea to keep siblings together. However, it is important to ask, is the 19-year-old too young? What is going on in your 19-year-old’s life? Is she just starting college? Is she mature enough to look after herself and a minor? How will this new responsibility affect her education and future? Putting that kind of pressure on a young adult can also lead to problematic outcomes.
- Home environment
Consider the environment of the new home you may be sending your child to. Is it a home full of love and respect, or does it have a history of abuse or neglect? Are there pets that your child may be allergic to? Is it a safe environment? Will the guardians respect your wishes as to how your child is to be raised? Is your child comfortable with the guardian, and any other family that may live there? Is this a person they know and are familiar with? Do your children get along with the guardian’s children?
Your child just lost their parents. We want to make this transition as easy, comfortable, and smooth for your children as possible.
- Naming Co-Guardians
We see this often when parents name a married couple as guardians. If you are naming a couple, always consider the possibility that the guardian’s marriage may end in divorce or death. In that scenario, who should be the guardian?
Let’s assume you nominated your sister, Rachel, and her husband Mike, as the first choice of guardians for your child. Your brother, Phil, is nominated as second choice. What happens to your child if Rachel dies? Should Mike remain guardian on his own? Or should your child be raised by Phil instead? If you really want your child to be raised only by Rachel or Phil, you need to say so explicitly. This is not the time to worry about hurt feelings. You want to express clearly in writing who you want your child’s guardians to be. Moreso, we can do so without making Mike feel too bad!
- Name Backup Guardians
We always suggest naming at least 2 sets of permanent guardians. Circumstances change, and there is no guarantee your first choice will be willing or able to serve as a guardian when the time comes. If there is no back-up, the court will decide where your child goes. It is always better to name an alternative (or two!) ahead of time when you have the chance.
- Guardian as Trustee?
A Trustee is the person who will administer your Trust, manage, invest, and distribute your assets to your beneficiaries after you pass away. If you have minor children, the Trustee will be managing your assets until your youngest child turns at least 18-years-old. If you’ve decided you don’t want assets to be distributed until your child turns 25-years-old, the Trustee will be managing those assets until then. The Trustee you name should be a financially responsible person that you trust.
From a practical standpoint, one option we give most clients is having the same person serve as successor Trustee and guardian. The reason for this is simple – we want to avoid a situation where the Trustee and the guardian do not get along and disagree on how assets are distributed. Your child’s guardian will know best what your child needs at each stage of their life, and if the Trustee is someone they don’t get along with, it may become difficult to make certain decisions or fulfill those needs. Furthermore, being a guardian is likely a tough job. Why make it harder on them by withholding monetary funds?
On the other hand, you may have a good reason for choosing different people. Maybe the guardian you have chosen would be the perfect “parent,” but they are not financially responsible. Perhaps you prefer a checks-and-balances system, or you do not want to overburden one person with the task of successor Trustee and guardian. When this is the case, we advise clients to make sure the Trustee and guardian can and will work together for the benefit of your child. After all, you are setting up your trust and guardianship documents for your children.
- Preferences of Your Child
This normally concerns older children, such as pre-teens and teens, but maybe something to consider if your 7-year-old twins are terrified of Uncle Tim. I’m not saying your child should automatically choose who their guardians will be, but perhaps their preferences should be taken into consideration, especially if they dislike the guardian you are considering.
- Money is Your Job, not your Guardian’s
We normally advise clients not to choose a guardian purely on the guardian’s own financial situation. The reason here is simple – as the parent, it is your responsibility to provide for your child, even after you pass away. That’s right… death does not excuse you from paying for your child’s tennis lessons. If you want your nominated guardian to make sure your child goes to private school, is involved in extracurricular activities, and goes to college, you need to make sure your guardian has access to the financial resources necessary to pay for those things. If you think your current assets may not be enough, obtain a life insurance policy. Choose a guardian based on the type of parent they will be. Money is what you are leaving behind for your child’s care.
- Excluding a Guardian
If there is someone you strongly believe should not be a guardian to your child, you can exclude them confidentially. The last thing any parent wants is for their child to be raised by an estranged family member they do not trust or get along with, or whose values, beliefs, and parenting style is the complete opposite of theirs. This is something to document clearly on paper. We only recommend doing this though in situations where you feel this person will affirmatively challenge your nominations of other individuals and petition the court for custody.
- Updating Documents Every Few Years, if needed
Life happens and things change. We recommend updating your documents when you want to change your trustees, guardians, or beneficiaries. There are many reasons for these changes – death, strained relationships, people moving. Update your documents as your circumstances dictate.
Last, and most importantly, once you (and your spouse) have narrowed down your choice of guardians, be sure to have an open conversation with your potential guardians before naming them on paper. Make sure that if the time comes, they are willing to take on this responsibility. Make sure your wishes, beliefs, and parenting style is something they can put into practice if they become the legal guardians for your children.
It’s ok to not feel great about your chosen guardians. It’s ok to feel no one will ever be good enough for your child. The truth is, we love our children more than life itself, and naming someone who has the potential for being a decent guardian is always better than naming no guardian and having the court nominate a random, total stranger.
Recent years have taught us many lessons, and has reminded us life is short, unpredictable, and extremely fragile. One of the biggest gifts you can give your children is ensuring they have a safe, secure, and stable future ahead of them if something were to happen to you. Start planning for that future today.
Sabina Chopra is an associate attorney at Bridge Law, LLP. She specializes in estate planning, and has counseled hundreds of clients in creating living trusts, guardianship documents for minor children, powers of attorney, and healthcare directives.