As an attorney and a widow, I have a unique understanding of how important it is to choose a legal guardian for your children. After my husband suddenly passed away several years ago, I had to go through the important process of creating my own estate plan, including a will that named a legal guardian, should something happen to me. The last thing I wanted my children to suffer was a long, drawn-out court proceeding to determine whom they would be raised by if I couldn’t do it myself.
After writing my estate plan, I had an enormous sense of relief and peace that I had done all I could to for my kids, no matter what the future held. So I decided to create a career of helping other young couples do the same for their families. It is such an honor for me to help people ensure the safety and security of their family’s future.
I can completely understand, however, that for many people, choosing a legal guardian for their kids can be a difficult or uncomfortable decision. Therefore, I am sharing some tips for how to choose a legal guardian for your kids. Hopefully, these suggestions will help make this critical decision a little easier.
What is a legal guardian?
A child’s legal guardian is someone other than the child’s parents that assumes responsibility for the child.1 The guardian takes on the role of a parent by providing the child with day-to-day care. The guardian also makes all legal decisions on behalf of the child until the child reaches the age of majority (age 18). A court will appoint a legal guardian if the child’s parents did not nominate a guardian in a valid will.
8 Tips for Choosing a Legal Guardian for Your Kids
Grandparents are Not Ideal
People often ask if naming their own parents as guardians for their children is okay. While there’s nothing legally wrong with it, naming elderly parents is not an ideal choice. Our parents are very likely to predecease us, so naming them as the guardians for your children is very risky. If they are not alive and something happens to you, it will be up to the court to decide who gets to care for your children.
Doesn’t Have to Be Family
Many people struggle with naming a family member as the guardian of their children. Unfortunately, not everyone has a trustworthy or like-minded family member they would trust to love and care for their children as they would. The good news is that you do not have to name a family member at all. If you have a trusted friend you believe would be the best caregiver for your child, have a heart-to-heart talk with that person. If they agree, there is nothing wrong with naming them as the guardian for your children.
Often a couple has a hard time agreeing who to name as the guardian of their kids. You may want your sister to do it. Your husband may think his brother is a better fit. Do your best to come to an agreement, perhaps writing out a pros and cons list for each of your choices. However, you can also come to a compromise by naming one of your choices as the guardian, while the other choice serves as the Trustee (the person in charge of handling the assets in the trust set up for your minor children). That way, each of your choices has an important role in raising your kids if you’re unable to do so.
You Can Change Your Mind
Naming a guardian now does not mean anything is set in stone. You can always amend your will to change who is named as the guardian. In fact, I always advise my clients to review their wills every 5-10 years to make sure everything is still how they wish it to be. Life happens—people get divorced, people die, people break ties with family. Things can and do change over the years. You can always change your designation of a guardian. But it’s important to get that designation set to begin with to be safe.
Name an Alternate (or Two)
Even if you have named a guardian in your will, that person is not legally obligated to accept that role. I always advise my clients to name at least one alternate guardian in case their first choice is unwilling or unable to serve. You never know who will be alive (and willing) in the future. It’s always in your best interest to name a primary guardian, and one or more alternate guardians should something preclude the primary guardian from fulfilling his or her nomination.
Ask Your Child
This suggestion is something that not many people will want to consider. So it is best used on a case-by-case basis. If you are the parent of an older child, you may want to talk with that child about their opinion on the subject. Talking about a parent’s potential demise may be upsetting for some kids. But for others, it can be something they are mature enough to discuss. Ask your child whom they believe would be a good substitute parent if you couldn’t be there for them. It may help to bring some insight into the decision you may not have considered.
One way to narrow down who you may want to name as legal guardian is to consider who would raise your child the way you would want. Determine what your core values are. What core values you want your child to learn? Then do some digging into which of your friends or family members would help instill those values in your child. Finally, select a guardian based on those values.
Make It Legal
Once you’ve finally made the important choice of a legal guardian, make sure you make it legal by having your will done. But please, PLEASE, do not use an online legal service! There are many reasons why using an online service is a bad idea. First, depending on your state’s specific laws, an online will may not even be valid. Second, most online wills are not very comprehensive and can leave important issues unaddressed. Further, a will may not be the only estate planning document you need. Consulting with a qualified estate planning attorney will be your best course of action when making these and other important legal decisions.
Choosing a legal guardian for your precious kids is one of the most important decisions you can make for them should the worst happen. Don’t put it off because it’s an uncomfortable or difficult decision. It can mean the difference of your child being raised by a person of your choosing versus having the state court decide for you (whether you like it or not).
Of course, once you have made your choice, be sure you speak with your chosen guardian about your decision. Ensure they are willing to take on such an important role in your kids’ lives should the need arise. And then rest easy knowing that you have done all you can do to protect and provide for your children, even if you aren’t physically there for them.
This article contains general legal information and does not contain legal advice. The law is complex and changes often. For legal advice, please consult with your attorney.