When we decide to sit down and write a Will we obviously think about our valuable possessions, property and savings, but more importantly than all of that, you might need to consider a legal guardian for your children.
Two-thirds of American parents haven’t chosen a legal guardian, but whether your children are infants or teenagers, they are the ones that will benefit from careful parental attention to guardianship. The nomination of a legal guardian is a straightforward aspect of any family’s estate plan but you will want to give a full consideration of all potential guardians before jumping into a decision.
Getting started – Define your dream parent
Your choice will be made easier if you first list the qualities that matter most to you in a caregiver. To do this, picture your children at eighteen or twenty-one: What do you want them to be like? What spiritual and moral values do you want them to have? What practical skills? Whom do you want their role models to be? Establishing guardianship is very much about deciding what core parenting principals are important to you and recognizing those same values in the guardian.
Firstly, make a list of anyone you know that might be a candidate for guardianship of your children. It is important to think beyond your sisters and brothers and consider cousins, aunts and uncles, grandparents, child-care providers and business partners. You might also want to consider long-time friends and those you’ve gotten to know at parenting groups as they may share similar philosophies about child-rearing.
Often, the stickiest question is whether to choose a legal guardian outside the family. Naming friends as guardians is increasingly common, though relatives are still the most popular pick, naming a friend can sometimes be your only option if you have limited family members. Whether you opt for kith or kin, be sure to name someone who’ll really love your child. Guardianship arrangements can go terribly wrong when the role is taken on out of a sense of duty rather than a sense of passion and commitment to the child. Responsibility can turn into resentment and no one wants that for their children.
Second, make a list of factors that are most important to you. Here are some to consider: Maturity, patience, age, parenting philosophy, current relationship with child, stability, physical health, religion or spirituality and marital or family status.
Out of this list of qualities you will be able to come up with potential candidates for guardianship and assess how well those people match up with your ideal situation.
Practicalities beyond philosophy
In the movie Raising Helen, a young woman is named as the legal guardian of her sister’s children even though she is anything but the obvious choice. At the end of the movie a letter from her deceased sister explains that “If the children can’t have their mother, they should have the person who is most like their mother.”
The story demonstrates the importance of you selecting a guardian based on your values which is a nice sentiment, but real world practicalities also need to be considered.
Does the legal guardian have the financial means to look after your child in the comfort that they are accustomed to? If you have young children, are the guardians of an age and physical ability where they will be able to cope with the pressures of child-rearing? Is their house big enough and do they have a support network of friends or family to help? Some parents decide that one spouse is the best choice for a guardian while another is better for managing finances. You can always amend your Last Will and Testament if circumstances change and you wish to choose a different person.
Ask permission first
Because the life of the person you select will obviously be greatly impacted, you should discuss your decision with that person in advance. The people you name have the right to refuse, so you’ll want to discuss the matter with them before you set your arrangements in stone. If the person is going to decline, it is better to know that now so that you can make other arrangements.
How to ask? If you are concerned about asking them, remember to be respectful and complimentary. It’s a good idea to speak openly about your finances – how much insurance you have, whether there will be a fund for education, and so on, as this will alleviate some of their immediate concerns.
Don’t pressure your guardian-elect into a decision, give them ample time to think it over. This decision could one day fundamentally change their life, so respect that and allow them time to process their thoughts. Chances are, your top pick will say yes. But refusals aren’t uncommon. Some people fear that their own kids or careers leave them too little time to take on such a responsibility. Others just don’t feel cut out for surrogate parenthood. If your choice does refuse, respect their decision and be thankful that you talked it through rather than forcing the situation on them.
After time you may want to change your decision. For example, you may have selected grandparents when there was only one child but if a second comes along you might become concerned about your choice. Keep your options open and make sure your thoughts are clearly conveyed to your prospective guardian. Remember to update your Will as soon as you make a decision to avoid a wrong placement in the event of your death.
While no one enjoys thinking about it, life is full of surprises and being prepared is always wise.
By not choosing a legal guardian it means that your kids will become orphaned and the courts will decide who gets to raise them. A judge might pick the logical relative without any consideration of your values and friendships. If no one agrees to take the children, they could end up in foster care. If too many people want them, then your relatives will end up fighting in court to become the guardians. That situation could become very ugly and it can all be avoided by simply naming a guardian in your Will.
Make it legal
The nomination of your legal guardian can be as basic or as detailed as you want. You can simply name the guardian who would act if both you and your spouse were unable to or you can provide detailed guidance about your children and the sort of experiences and family environment you would like for them. Your state court can then give strong weight to your expressed wishes.
Make sure you consider a backup, in case your first choice is unable to serve. It’s also important to pick a guardian even if you’re divorced. Although the courts typically favor ex-partners, you’ll want a plan in case he or she dies, or is deemed incompetent.
Many people also find it helpful to write a letter of instruction which can be comforting to you and practically helpful for the guardian. It also gives you the opportunity to list any concerns that you may have on how you would like your child raised. For example, you may want to make it clear that both sets of grandparents should be able to visit or you might want to name people that you don’t want to have visiting rights. A letter of instruction will hold no legal weight, so you still need to ensure that your guardian is named within your Will.
Writing Your Will
As you can see, writing your Will is an essential step when it comes to planning ahead for your children. There are several options available to hep you get this done, which we’ve covered completely in a previous article on how to write a Will.
Wrapping things up
Revisit your choice anytime your family situation changes. It can be frightening to pick a legal guardian for your child for forever but luckily, you don’t have to. Your guardian might be the right choice now but you don’t know how their life will alter over time. They might get divorced, have children, become incarcerated or suffer from an unexpected health condition. Remember your Will is not set in stone, you have the ability to change it anytime you need – just make sure you do.
Lawyers and therapists suggest reviewing your choice every few years, especially after major changes in your life or your guardian’s. If you do switch, it costs just a fraction of drafting an entire Will.
Now we can see that naming a legal guardian is a far more complex process than one might assume. From listing all of your values, morals and practical considerations, there are a lot of points to go over when picking a guardian and as we have discussed, we all change with time. No one knows what is around the corner for any of us. Don’t delay in writing your Will or nominating a legal guardian as you do not want the courts to make these crucial decisions for you.
Tim Hewson is one of the founders of USLegalWills.com.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets, and has contributed to articles in The New York Times, NY Metro Parents, U.S. News & World Report, and other leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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