What You Need to Know About Guardianship

As a new-widowed person and single-parent with minor children, one of the first things you need to think about is guardianship – selecting someone to take care of your children should something happen to you.  No one likes estate planning, especially soon after the loss of a spouse, but it could mean the difference between chaos and stability for your bereaved children.  You must consider what you would want to happen to them should something unexpectedly happen to you.  You can’t schedule an unexpected death, so the sooner you have this taken care of the better.

What Is a Guardian?

 In most cases, a surviving parent assumes the role of sole guardian of your minor children. However, what if something happens to you?  If you haven’t selected a guardian to replace you, the state will, and that’s probably not your preference.  The guardian you choose should be over 18 and willing to assume the responsibility.  Talk to the potential guardian about what you are asking before naming that person in your will.  You can name a couple as co-guardians, but that may not be advisable.  It is always possible the guardians may choose to separate at some later date; if so, a custody battle could ensue.  If you do not name a guardian to care for your children, a judge will appoint one.  Guardians are listed in your will, so the first thing to do is create a will if you don’t have one or update it with this information if you do.

What Is a Will?

A will is a legal document that allows you to transfer your property at your death.  A will is a simple way to ensure that your money, property, and personal belongings will be distributed as you wish after your death.  A will also allows you to have full use of your property while you are alive.  You would work with an estate planning attorney to both create a will or update the one you have already.  You will select a personal representative, also called an Executor, to manage and wind down your estate, resolving any debts and distributing your assets and property as you have directed in your will.

What do Guardians do?

A guardian will generally make similar decisions to what a parent could make for a child. This may include medical decisions and, for minors, other life decisions such as where to go to school.  Guardians may also cover managing the child’s finances.  A guardian is usually charged with providing for all of the child’s necessities. These necessities include providing food, shelter, clothing, and any other items that may be needed.  Of course, most people consider a loving home and ample opportunities to succeed as necessities as well.  In many cases, the guardian that is named by the parents (or appointed by the court) will personally take on the task of raising and caring for the child(ren).  It is no menial task or responsibility; it is critical that you choose wisely.

Tips to Choose a Guardian

Selecting a guardian(s) for your child(ren) may be one of the most difficult tasks following the loss of your spouse.  There is so much to consider given a guardian’s long-term responsibility to your children should you die while they are minor children.  The following list includes a few important considerations when choosing a guardian (your attorney will have others).

• Religious preference. If you have specific wishes about your child’s spiritual practices, this is a conversation to be had with the guardians they appoint.

• Physical ability — now and later. Will they be able to meet the physical demands of raising children?  This is often the issue with naming parents as guardians – raising young children in your 60’s gets much tougher in your 70’s.

• Emotional stability. Your 22-year-old artist brother who sleeps in to noon may not be ready for this.

• Location. If your sister in California is going to get the kids but you live in New York, is she supposed to come live in your house, or would the kids go to her?  Does she live in a good school district?  If your chosen guardian’s location would mean uprooting the children, don’t leave these questions to surviving family members to figure out on their own.  If your appointed guardian lives outside the United States, or even a time zone away, it’s especially critical to consult a lawyer, as different states have different laws about moving minors out of state.  Getting the language correct in the will can prevent delays and extra costs down the road.

• Alternative guardians. If you name a single person, what happens if they are unable to care for your child?  If you name a couple and they later separate or divorce, what’s the back-up plan?  There may not be a perfect solution, but the deeper bench strength you have the more likely a guardian of your choosing will prevail instead of not naming sufficient alternatives and having the court decide.

• Financial responsibility. This is critically important and difficult to ascertain sometimes.  There are two types of guardians of a child: the legal guardian — who has physical custody of a child, kisses boo-boos and signs permission slips — and a fiduciary, who manages the deceased parent’s finances set aside for the child.  The fiduciary role may be played by a conservator (sometimes used by courts in lieu of a guardian), personal representative, attorney-in-fact, or custodian if there is not a trust and a trustee if there is.  It’s not necessary to divide the two roles, but it’s an option if you have concerns about your legal guardian’s money management skills or your fiduciary’s care-taking skills, or if you want to ensure a larger team of people is responsible for your child’s well-being after your death.  If you do name a fiduciary, make sure it’s someone familiar with your child’s needs and lifestyle so that there won’t be tensions over whether horseback-riding lessons are a luxury or an important source of comfort and consistency for a bereaved child.  If you are financially secure, strongly consider setting up a trust for your children that disperses funds to them gradually.

What are the Steps for Naming a Guardian?

Now that you have considered the above factors and have a short list of potential guardians, you need to have several conversations with them.  Some parents wish to keep their choice for a guardian a secret in order to avoid drama, which is a big mistake. Potential guardians need to be prepared for such a responsibility and they need to understand your expectations and what it will take to raise your children. Nobody wants, or deserves, this kind of surprise following your death.

You should understand that you can always change your mind.  Life changes and people change.  All parts of your will, including guardianship, can be updated whenever you choose.  You don’t need court approval; you simply ask your attorney to make the changes and the cost is minimal.

It’s smart to revisit your choice of guardian every five or 10 years when you have a young child (annually if your child has special needs), but there are times when it’s especially important to consider updating your will, including divorce and remarriage, evidence of alcohol, drug or physical abuse, or criminal activity.

Lastly, put your wishes in writing.  Start a “how to raise my child(ren) handbook” to help your guardians raise your children when you can’t.  The more information you can provide, the less guessing there will be and your children will be raised as you would hope.

If you are now a single-parent with minor children, thinking about guardianship for your young children is important.  Contact an estate planning attorney today to create a will, update your present will, and begin to take the necessary steps to select and add guardians to your will.