Who should I select as guardian of my kids if something happens to me (12 Factors to Consider)

Many parents do not want to think about another person raising their minor children, but it’s one of those things that has to be addressed. For complete peace of mind, most parents quickly put their wishes in writing (i.e., complete their Will) just to be safe.

After all, if something happens to you, wouldn’t you want to make sure that your kids are left in good hands (and not with your crazy uncle)? An appointed guardian is the person who would have legal custody of your minor children, and would effectively become their caretaker until at least age 18.

How to select a guardian for your minor children

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.

Make sure to ask the person that you are considering if they are comfortable with being named as your child’s guardian in your Will before finalizing the document. You will also want to thoroughly answer any questions they may have to ensure that this is a good fit for everyone.

Below are the 12 factors worth considering before finalizing your choice.

12 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 that come to mind. Clients also tend to go back and forth as to whether they think grandparents will be a good fit as the minor children grow into teenagers.

To help you narrow down the list of potential guardians, here are 12 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 use on their own kids?
Guardian’s other children. If the guardian has other children, would they get along with your children?
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.
Child'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 their childhood should be the most fun and carefree time of their 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 serve as the guardian of their minor children and as 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 successor co-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.

What happens if I don't appoint a guardian?

If you don’t appoint a guardian, it can begin a complicated legal process.

A family member, close friend, or even a social worker will get the process started. Many times, the person who starts the process often will become the guardian (if he/she wants to, of course). However, it is a judge who makes the ultimate decision on who becomes the guardian so if you can indicate to the judge who you prefer (via your Will), then your children are in a much better position to be placed with the guardian of your choosing.

Other things to keep in mind…

At the end of the day, your choice of guardianship is just a recommendation to the county. However, state laws do give high priority to your recommendation, unless there is evidence against that choice. For example, criminal or health history may impact the person’s ability to have guardianship over your child. Some states also allow the minor child, usually over the age of 14, to have some input on this decision.

If you are divorced but do NOT want your ex-spouse to take custody of your children, you must explain why in your Will or in a private letter (a private letter left with your first choice guardian would be the best practice if you don’t want the details to become publicly available in your Will). Possible reasons for why your ex-spouse should not be named guardian could be police reports, court records, photo evidence, etc. All of this should be left with your first-choice guardian so they may present it as evidence should it become an issue in court.

You should also consider whether or not the person you select gets along with your family. Do they get along with your parents, siblings, and close friends? You do not want your child to lose those special people from their life because the guardian does not get along with them.

Clearly, there is a lot to think about when selecting a guardian for your minor child, but with the appropriate time and effort, you will pick the right person and feel an immense sense of peace once it’s in writing.