It’s hard to imagine someone else raising your baby – that’s why most people put it off or avoid doing it completely. However, in the event that something were to happen to you and your partner, this is the most important decision you will have ever made.
This decision is certainly rife with complexities and tricky family politics. But the worst part? You’ll never be completely comfortable with the choice, because no one can do as good of a job as you.
Nonetheless, you have to plan for the unthinkable; choosing a guardian for your kids is a must, for their sake and for your own peace of mind. And while no one can tell you what matters most, there’s plenty to think about as you and your partner consider the candidates.
FIRST, THE BASICS…
What Is A Guardian?
Simply put, a legal guardian is an adult who is legally responsible to take care of your child until he or she turns 18. But there are actually two types of guardianship that you will need to consider when deciding who will care for your kids. These are the ‘guardian of the estate’ and ‘guardian of the person.’
The guardian of the estate is typically someone who will manage the minor child’s inheritance on their behalf. This guardian will have to make sure that they carefully and appropriately manage accounts, keep receipts, periodically report back to the court, and do not combine the child’s assets with their own. This guardian is in charge of fulfilling your will’s wishes and distributing assets.
Another route you can take as a parent is to set up a trust and have a trustee manage your child’s funds. This would give you more control over how and when money is distributed, especially if you anticipate leaving a substantial inheritance.
The guardian of the person is the daily caregiver who will make sure that your child gets their health care, educational, housing, and all other needs met. This guardian is responsible for the overall well-being of your child.
Should I Appoint The Same Person For Both Tasks?
The question you probably asked was ‘can I make one person responsible for both tasks?’ The answer to which is simply yes, you can. But the most important question I urge you to ask is ‘should you?’
These two roles have very different goals; the guardian takes care of your child, and the executor provides financial assistance and preserves your assets. It can be very tempting to have the same person take care of both jobs, especially if your chosen guardian also has a good head for money – but it’s something that should be considered carefully.
If you choose the same person to assume both roles, they could be tempted to dip into the estate’s assets since they’re also looking after your child. Having a separate person manage the estate can provide a series of checks and balances, which may help if you are concerned about the misuse of your child’s funds. All that being said, it is also very important that the two people you choose will get along and work together.
How Do I Name A Guardian?
You need a will – and for many, this is the hardest part as even the thought of creating a will is overwhelming. However, the only way to ensure your kids are taken care of by someone you trust is to get your affairs in order.
Within your will, there will be a guardianship clause. This clause will put your guardian choice in a legal position to take immediate charge on your children, determine where they live, and make decisions for them in the 90 days after you die.
During this time, your guardian will have to apply to the court for permanent custody – however, it’s very unlikely that the court will question your decision.
To make things as seamless as possible, each parent (married or not) should have their own will – but with an identical guardian clause. You can and should give a copy to your guardian so they can act quickly if something happens to you.
Finally, include a letter with the clause in your will detailing your wishes regarding your child’s education, religion, access to family members, and anything else you think is important. I will note that this is not legally binding, but instead serves to give your guardian some guidance.
How Much Will It Cost?
Lawyers typically charge between $350 and $1500 to prepare a will, including the guardianship clause, and most general practice lawyers can do this for you. If you already have a will, adding the guardianship clause will cost between $150 and $500.
Do-it-yourself fans should beware. DIY kits can be problematic because if it’s not worded or executed correctly, it may not be valid. This isn’t the place to skimp.
Include A Backup Guardian
Since many people neglect to update their wills, it is possible that one of the guardians you select may die or become unable or unwilling to assume the role. So, although it is recommended to review your will regularly to update it, I will also recommend choosing backup guardians.
Don’t Forget Contact Information
Put all of the guardians’ details in your will, including full legal names, home addresses, telephone numbers, and email addresses. Otherwise, the executor may have difficulty finding them.
What Happens If I Don’t Appoint A Guardian?
If no guardian is specified in your will, things can go one of three ways. Typically, a family member or friend will come forward and be appointed by the court. In the case where multiple people come forward, there will be a custody battle, and the judge will choose a guardian based on what they believe is in the best interest of the child. In the case that nobody steps up, Child Protection may place your child in foster care until a more permanent solution can be found.
Can I Choose A Guardian While Pregnant?
Yes. You do not have to wait until your child is born to appoint a guardian. You can go to your attorney’s office when you or your spouse are pregnant to draft up the legal documents – before the madness of caring for a newborn starts.
What If We Disagree?
This is a very emotionally charged subject that parents have to face – so it’s not unusual for couples to not see eye to eye. However, quite often, a compromise can be found if you really listen to one another.
With a pen and paper, individually answer the following questions, and provide as much detail as possible. Many of these questions will take some thought, so don’t expect to figure this out right away. Instead, answer what you can in the first sitting and set a deadline to finish the rest.
As you consider these questions, feel free to change your mind. You may also find that you prefer certain people for some questions but not for others. That’s okay. This process is about identifying the strengths and weaknesses of your child’s potential guardians. Often, the most appropriate person is someone who scored well overall – as opposed to someone who scored great in some areas but terrible in others.
If you are deciding as a couple, only after each of you reach a decision should you compare notes. By having written down the reasons for your preferences beside each question, each of you can better understand the other. And be open to the fact that their reasoning may be more sound than yours.
In the event that you reach an impasse, it’s likely in everyone’s best interest to seek help from a trained counselor or mediator.
Can I Change My Mind?
You’re picking the best option for now. But say in a few years, they’ve gotten ill, married someone you’re not comfortable with, or suffers a setback of some kind. What do you do then? Appoint a different guardian. It really is that easy.
Rest assured that as times change, relationships change, and people change, you can change your mind as well. In fact, it’s advised that you do keep revisiting your decision and keep the lines of communication open.
Can I Leave All My Money For My Kids?
While you probably want to leave all of your money to your kids, you should be realistic about the financial impact that raising them will have on the guardian. The guardian is sure to incur expenses associated with raising your child. From day to day needs like providing food, to bigger expenses such as adding a room to their house or buying a bigger car.
This is why you should make your assets available to help them. Otherwise, you run the risk that the guardian, their spouse, or their children, may become frustrated. Thus, you must carefully balance several issues: you want your money to be used for the benefit and welfare of your child and have the assets available to help the guardian as needed. But at the same time, you want to protect against the squandering of the assets by the guardian or others.
Remember To Ask Permission
All of the other things that you need to consider will pale in comparison to this important factor. Before you put their name on that piece of paper, it is crucial that you have a conversation with the potential guardian to ensure that they would actually be willing to take on the role.
Putting their name on your will does not automatically mean that they will be taking your kids. The assigned guardian always has the choice to say ‘no,’ if they don’t want to, or simply cannot serve. So, if you don’t take the time to ask the potential guardian if they would be willing to act as your child’s guardian, then you may be setting your children and family up for a court battle.
This isn’t a question to be asked in passing – this should be a conversation, and everything discussed should have serious consideration. Make sure that they are comfortable with your decision, talk about how this would affect their family, and discuss the hopes you have for your child’s future.
What If My Decision Hurts Someone’s Feelings?
I know this advice may be hard to listen to, but this is not something that you should be worrying about. Your child’s well being is on the line, so your choice of guardian needs to be based on what’s best for them, not what will make your friends or family happy.
Unless the person you’ve selected opposes your choice, this decision belongs to the parents and the parents alone.
Nonetheless, you may need to reassure those who aren’t chosen that you hope they will remain close to you and your child. You should acknowledge people’s feelings, but stay calm and confident in your decision.
NOW, HOW TO CHOOSE…
Don’t Automatically Go For A Couple
Many parents tend to gravitate towards married couples when they are choosing a guardian for their children. After all, a married pair can seem more stable than a swinging single – but think carefully. Divorce happens to even the best of couples.
So, you might want to pick one person instead. Or decide ahead of time which person would raise your child in case the couple were to split up. And if one of them dies, would you feel comfortable letting the other raise your child?
Consider Their Physical Ability To Parent
You may have your heart set on selecting your or your partner’s parents – after all, grandparents can certainly make great guardians. However, you must be sure that they would be able to run around after your toddler and handle the demands of a teen.
Ideally, you would want to choose someone young enough to see their responsibilities through to your child’s adulthood, and in good enough health to withstand the challenges of child rearing. However, there is an alternative.
An option to consider would be to designate a guardian for a specific length of time (for example, until your child turns 12) and designate another person to care for your child until they turn 18.
How Old Are They?
Continuing on with the previous point; the age of a potential guardian can cut both ways. On one hand, an older guardian may be in a better position financially, and have more time to be hands on with raising your child. But on the other hand, an older guardian may be out of touch with the current trends in education, parenting, and simply what today’s kids like and want.
With a younger guardian, they’re more likely to know about and understand the current trends – however, they may be too involved in getting their own career and family in order to be able to care for your child. They may simply not be in a position to raise your children.
Are They Likely To Live For Many Years?
Remember that you are planning for the event that your child has just lost their parents. So if they were to lose their guardian as well, it could be twice as devastating.
While physical disabilities or any other health related condition do not necessarily preclude good parenting, it is wise to consider health factors that may limit a person’s life expectancy.
Will They Be Able To Offer Stability?
Stability is a key factor in parenting obligations. Stability can refer to their home; whether they will stay in a consistent location and environment. But more importantly, it refers to a stable lifestyle and character.
Ask yourself, would your appointed guardian be home and available to your child after school? Or do they have a demanding career that requires frequent travelling? Is your guardian reliable and able to commit to the role of an authority figure?
Where Do They Live?
Thanks to movies like Life As We Know It, I used to think that if I died, the person I chose as guardian for my children would pack up and move into my house to raise my kids. I know now that is asking a lot from my guardian – and that what is more likely to happen is that my children will move in to the guardians own home.
Moving your kids to somewhere far away after they lose their parents seems like it would make an already difficult transition even more difficult. Not only will they have lost their parents, but everything else they are familiar with; school, friends, nearby relatives, as well as favorite places and pastimes.
However, if the best person for the job lives elsewhere, it’s very likely that it will work out in the end. Additionally, most kids are quite resilient when it comes to this kind of change.
Consider Home Environment
A stable and positive home environment is necessary for a healthy upbringing. So ask yourself, in the event that the guardian becomes my child’s primary caregiver, will they be able to provide a secure and comfortable home?
Consider factors that may be stressful or disruptive to your child. Will they be moving to a rural or urban area? Does the potential guardian have pets? If so, does your child like those pets? Is the guardian a smoker?
Most importantly, can your guardian provide an environment that would not only reassure you, but also your child, that it would be a comfortable home?
Do They Have Experience With Children?
Whether the potential guardian is already a parent or not may affect your decision. However, one’s ability to become a suitable guardian doesn’t necessarily depend on whether they’ve raised their own children.
The best suited guardian may not have children of their own, but maybe they’ve spent time with children in the past, perhaps in a family or work setting. They may have demonstrated a natural sense of being able to connect with, relate to, or care for children and/or teenagers. Or maybe the guardian is someone who connects specifically with one of your children – think a favorite aunt or cousin.
What Is The Potential Guardian’s Family Situation?
Is the potential guardian married with minor children or married with adult children? Are they a single parent? If married, how stable is the marriage? Considering the potential guardian’s family situation is key to understanding how they can and will influence the upbringing of your child.
But this is not only true for their current family situation, but also their future. If single, is there a potential spouse or significant other? If the potential guardian doesn’t have any children, is there a possibility of children later on?
Will Your Children Be Split Up?
If you have more than one child, you must consider whether you will name more multiple guardians. In this instance, the legal guardian you choose may depend on whether they are able to care for all of your children, or if your children would be separated.
Whereas there is probably a lesser emotional effect to such a choice when choosing guardians of the estate, there are larger considerations at play when dealing with guardians of the person.
Do you want your children split up into different families if you and your spouse pass away? Maybe. Maybe not. You may have a large family and know that the burden of raising multiple children would be too much to ask of one person.
Whatever the reason, you can assign certain guardians to certain children (this includes both guardians of the estate and guardians of the person).
Are They Financially Secure?
Although a controversial factor to consider, we must acknowledge that raising a child is not a light expense. Some may argue that life insurance policies can take care of the child – but in the event that there are financial complications, choosing a guardian that has the financial means to assume responsibility for your child can offer a sense of security.
So, while you shouldn’t let their wealth – or lack thereof – be the sole basis for choosing one person over another, you do want to know that your child will be in a financially stable home.
Ask yourself, does the potential guardian own a home? Do they have a good job? Is their job secure? Are they good with managing money? Do you think they would have to quit their job or take on a second job to raise your child?
Much like the potential guardian’s family situation, considering their financial situation is key to understanding how this can and will influence the upbringing of your child. You will want to choose someone who has the financial resources to care for your child. It costs a lot of money to raise and educate children, and you do not want to impose these economic burdens on someone who can not meet them.
What Are The Candidates Personal Values?
Whether it’s religion, spirituality, education, or other elements of your parenting style, it’s important to consider if your personal values are in alignment with the person who would assume guardianship of your child.
First, think about your own religious, political, and moral beliefs, and then think about the potential guardian’s religious, political, and moral beliefs. If you don’t know much about the potential guardian’s beliefs, then you’ll need to ask because this is the person who you would be trusting to shape your children’s views if you’re not around.
Ask, what do you want for your child? Do you insist on home-schooling or private school? Is ensuring your child had a top education important? Do you want your child to be able to express themselves and follow their passions? Is exposure to the arts and other cultures essential? Will the candidate raise your child with the same values and cultural traditions as you would have provided?
While it will be impossible to find a guardian who follows 100% of your personal beliefs, someone who follows 70%-80% is certainly a better choice than someone who only follows 30%-40%.
Note that this is also important in choosing the guardian of estate. Even if this person is only limited to making financial decisions on your child’s behalf, you will also want that person to share your philosophy of child rearing in general.
Consider Character
This may be an obvious one, but I do feel the need to include it anyway. You should not choose someone that a court would not approve as a guardian. This would include those with a history or drug or alcohol abuse, or a criminal record.
Ensure You Trust This Person
Of course it’s important to consider whether you can put your full trust in your guardian’s ability to raise your child. Trust is the foundation of any relationship. But it’s especially important in a parent-child relationship, so you must also consider if your child would trust your chosen guardian too.
Consider your guardian’s willingness to raise your child as their own, as well as their ability to connect with your child.
Is the guardian someone your child would feel comfortable turning to in challenging situations? Would your child be able to ask for advice and speak to the guardian about personal issues when they arise? Most importantly, would they trust their appointed guardian enough to reach out when their health or safety is concerned?
Finally, ask yourself if they would be able to efficiently offer support and empathize with your child through the difficult time of transitioning to a new family and home.