Choosing a Guardian for Your Children

Estate Planning Practice Group

Estate Planning Practice Group

One of the most difficult decisions parents face when completing their estate plan is who should serve as guardian for their minor children. Here are a few common discussions regarding choosing a guardian:

  1. “I do not want to upset my parents, siblings, etc., but I want to appoint my best friend.”
    • I recommend that parents choose someone to serve as guardian for their children that shares their values and is going to raise the children similarly to how they would raise them. Now is not the time to worry about whether feelings may be hurt. This is a very personal decision and family members may not always be appropriate to serve as guardian.
  2. “I want my sister/brother/aunt to be appointed guardian.”
    • Each parent usually has a preference for his/her own family member. While an attorney can point out pros and cons to the parents, he or she will not take a side. While each parent can appoint different guardians for their children, this is not recommended as it will just lead to court battles. Parents should discuss and come to a consensus on who they want to appoint prior to meeting with the attorney.
  3. “We want to appoint my sister and brother-in-law as guardians.”
    • Appointing co-guardians may be difficult. If your sister and brother-in-law get divorced, do you want your brother-in-law to have custody rights?
    • Do you want to have to amend your documents if your sister and brother-in-law divorce?
    • Typically, appointing your sister as the guardian is the better option to prevent unnecessary amendments to estate planning documents.
  4. “I don’t want my ex-spouse to have custody of our kids in the event I die.”
    • Unfortunately, a surviving noncustodial parent has the right to take custody of the children unless he or she is unfit or unwilling to act. Typically your Last Will and Testament will acknowledge the rights of the other parent and appoint backup guardians for this case.
  5. “How many people should we appoint as backup guardians?”
    • Two or three backups should be appointed. Typically you do not want only one person appointed as guardian with no backup appointed.

Keep in mind that your Last Will and Testament only expresses your wishes to the court regarding who should serve as your child’s guardian. The appointed person must otherwise qualify. A history of involvement in the child welfare system, felony convictions, or a drug or alcohol abuse history may prevent your appointed guardian from serving.

While the decision of who to appoint can be difficult, it is important that you name someone to serve as guardian in order to prevent prolonged litigation in the event of a tragedy.

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