Selecting Guardians for your Minor Children

Jul 2

How to select a guardian…

Naming a guardian is the toughest estate planning decision a young family will need to make. If you fail to indicate who you would like to serve as the guardian in your Will, then the court will make the decision for you. That is why every family with young children needs to have a Will regardless of their financial situation. Otherwise, you risk the wrong person becoming the guardian of your minor children. It is important to note that the court will still be involved to make sure the best interest of the child is being served in any case, but the court will look to your Will first in order to make such a decision.

Factors to take into consideration when naming a guardian for your minor children…

When trying to think of a potential guardian for your minor children, family members or close friends are almost always the first people to come to mind. To help you narrow down the list, here are several factors to consider to make sure you have thought through this scenario from multiple angles to ensure the best interest of your child is being served by your named guardian.

Geography. How close does the potential guardian live to your current residence?
Guardian’s school district. Would your child be able to continue to go to the same school or one that is similar to the current school they are attending?
Guardian’s Lifestyle. Will the guardian be able to incorporate this change into their lifestyle; do they have the time needed?
Guardian’s health. Is the guardian in good health or an appropriate age to care for your children?
Guardian’s finances. Is the guardian financially stable and are they able to handle the expenses that may come?
Assets left for child’s benefit. Would you be leaving any money for the guardian to provide for your children?
Guardian’s religion. Would their religious beliefs interfere with your family’s?
Guardian’s values. Would their morals interfere with your family’s?
Guardian’s parenting style. Are you okay with the parenting style this guardian may present?
Guardian’s other children. If the guardian has other children, would they get along with yours?
Guardian’s spouse. If the potential guardian is married, are you comfortable with their spouse being involved? You should also consider whether you are naming the married couple as the co-guardians or just one of the two.
Children's happiness. Will your children be the happiest with this potential guardian? Naturally, we are focused on our children’s safety and education first, but it’s also important to consider that our childhood should be the most fun and carefree time of our lives. Is your named guardian going to give your child the ability to build those foundational happy memories and experiences that will carry with your child for the rest of their lives?

Conflict of interest in selecting a guardian…

Another major factor that cannot be overlooked is whether there is a conflict of interest. In an ideal world, the guardian would also be the successor trustee of the living trust you created while you were alive. This setup would enable the guardian instant access to assets that would be used for the benefit of your child through their childhood (and possibly well into their adult lives). But money is a funny thing. You’d like to think that the guardian would be the ideal fit for managing your child’s assets, but what if they have other children to care for? Will managing your child’s money create scenarios where the guardian may be commingling funds or using assets (strictly meant for your child) for the benefit of their own children? This is especially tricky if you are leaving behind a substantial amount for your child (especially with a life insurance payout) meanwhile the guardian may be of limited means for their own children.

At the end of the day, I still see most clients select the same person to be the guardian of their minor children and successor trustee of their living trust, but it’s still important to go through this mental exercise. Sometimes the best solution is to pick a co-successor trustee to serve with the named guardian to act as a check and balance. You don’t want to overcomplicate things, but you do want to be certain that the right systems are in place.

If you are still hesitant or have any other questions relating to your estate plan, then feel free to give me a call at (781) 202-6368 or shoot me an email at JLento@PerennialTrust.com.

I’m always happy to answer your estate planning questions.

Sincerely,

Joseph M. Lento, J.D.
Attorney & Owner of Perennial Estate Planning

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