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Choosing a person or family to care for your children is difficult. In fact, for many families, it's the hardest part of planning their estate. It's not easy to think of anyone else, no matter how loving, raising your child. Yet, you can make a tremendous difference in your child's life by planning ahead. And you have nothing to lose except a few moments thinking about what you value most in life, and in childrearing.
Anyone with a child under the age of 18 must consider who would raise that child if they were unable to. Of course, we all imagine the worst-case scenario - our own premature deaths - when we consider this. But there is a less tragic, and common, situation in which naming a guardian is crucial: incapacity. If you and your spouse were unable to care for your children for a time, who would watch over them while you recovered your abilities?
The younger your child, the more crucial this choice is, because very young children cannot form or express their own preferences about caregivers. Yet young children are not the only ones who benefit from careful parental attention to guardianship. Children close to 18 years old will be legal adults soon, but, as you well know, a parent's job does not end when the child reaches 18. By naming and talking about your choice of guardian, you can encourage a lifelong bond with a caring family.
The nomination of guardians is a straightforward aspect of any family's estate plan. It can be as basic or detailed as you want. You can simply name the guardian who would act if both you and your spouse were unable to. Or you can provide detailed guidance about your children and the sort of experiences and family environment you would like for them. Our office almost always recommends that it is best to leave detailed guidelines regarding the care of your children, including information on how you have raised them, your philosophies about religious upbringing, discipline, education, etc. The more detailed the instructions, the closer your children will be raised according to your family's values.
So how do you actually choose the right guardian? You may have too many loving family members to count. How do you choose between them? Or you may be from small families and wonder if you can find anyone suitable. Either way, you can make good choices by following four straightforward steps.
Step One: Make a List
Make a long list of everyone you know who might possibly be a good guardian. When considering whether someone should be on the list, ask yourself, "would they provide a better home for my children than the foster care system?" If the answer is yes, put them down. If the answer is no, note that too, for you may wish to express that under no circumstances should these people be made the guardians of your precious children. Your list could contain dozens of names but should have at least 3 or 4 people or couples before you call it a day.
Think beyond your immediate family. Parents have chosen as guardians cousins, aunts & uncles, grandparents, child care providers, business partners and friends. Consider long-time friends and those you've gotten to know at parenting groups. They may share similar philosophies about child rearing. Do not eliminate people from your list for financial reasons unless they lack basic money management skills. Sufficient life insurance or other assets in a well-drafted Children's Trust can ensure your children's material well being.
Temporary & Permanent Guardians
Consider the difference between "temporary" guardians and "permanent" guardians. Temporary guardians may be appointed to care for your children if both parents become disabled, but will eventually recover (a car accident, for example). Permanent guardians would be appointed if both parents are dead. If you unable to physically care for your children, you may want them to stay in town close to you, with the least amount of disruption to their normal routine. This would entail considering a temporary local guardian. If you are gone, it may be best for the children to move to wherever the appointed guardian is living, so they can begin to establish themselves in their new town and new school.
The Guardianship Panel
Finally, for the greatest flexibility, consider using a Guardianship Panel to appoint your children's guardians. The panel can consist of family members, loved ones and trusted friends who will decide who would be the best guardian for your children when and if the time comes. The Guardianship Panel allows for tremendous flexibility, since a named guardian might be appropriate at one time or stage in your child's life, but may not be appropriate when the child is older and the child and/or the guardian now have different needs and desires. The Panel can consult with your children as they grow up and, depending on the children's desires and what is in their best interests, the panel can then appoint appropriate guardians after taking into account the current situation.
Step Two: Decide What Matters Most
Choose a few factors that are most important to you. Here are some to consider:
- maturity
- patience
- stamina
- age
- child-rearing philosophy
- presence of children in the home already
- interest in and relationship with your children
- stability
- ability to meet the physical demands of child care
- presence of enough "free" time to raise children
- religion or spirituality
- integrity pets
- potential conflicts of interest with your children
- willingness to serve
- social and moral habits and values
- marital or family status
- willingness to adopt your children
Obviously, the perfect choice would score highly on every measure. But because we are all imperfect, you will likely have more success in choosing the few characteristics that are most important to you. Consider, as you make your choice, that some factors can be influenced by you and others cannot. Integrity is something you cannot change. But if having an at-home parent is important to you, your prospective guardian might be willing to come home to raise your child if you make it possible through a well-structured and properly funded plan.
Step Three: Match People to Priorities
Use the factors you chose in step two to narrow your list of candidates to a handful. Congratulations! You can relax knowing you have many good choices to choose from. Listen to your body and feelings as you consider each person or couple as guardian. If you choose not to use a Guardianship Panel, you will have to use your instincts to rank order this short-list into the people you would want first, second, and so on. If you select an attorney experienced in planning for parents of minor children, be prepared to answer the following question whenever you have named a couple: if the couple divorces or, because of death or incapacity, only one can serve, would you like either one to be guardian by themselves? Or would you prefer to move to the next name on the list? For this reason, it may be best to just name one member of a couple, rather than both, or name a contingency in case of divorce, death or separation.
For many families, it's as easy as it looks. For others, however, these three steps are fraught with conflict. One common source of difficulty is disagreement between spouses. Consensus is important. While you can each name different guardians, most parents are happier when they reach agreement. Explore the disagreements to see what information about values and people you should both understand.
Use your strongest communications skills and empathy to understand each other's position before you try to find a solution that you can both feel good about.
Regardless of which spouse's family or friends appear more frequently on your final list, it's important to keep both families involved. One way to do that is to name members of one family as guardians to care for the children, and members of the other family as trustees, to manage the assets for the children. If there is a likelihood of conflict between these family members, be sure to share this with your attorney so that your guardianship can be customized to encourage them to keep the lines of communication open.
Step Four: Make it Positive
For some parents, getting past this decision quickly is the best way to achieve peace of mind and happiness. For others, choosing a guardian can be the start of a more intensive relationship-building process. An attorney who understands where you and your spouse fall on that spectrum can counsel you appropriately.
For those who want to use the estate planning process as a life-enhancing inquiry, consider the following:
- Once they know how strongly you feel about their loving and good characters, your appointed guardians may choose to become more involved with your children (as "godparents" do in some religions);
- Focus on what you want for your children. Whether you are there to provide it or not can clarify your own parenting priorities, in addition to enabling you to create a highly customized estate plan that conveys your morals and values;
- Consider what you want to achieve with your children while they're still at home with you? What legacy do you want to leave for them when you say goodbye?
Nominating a guardian can be an intensive, life-changing process, but it can also be the easiest "legal" issue you'll ever face. The nomination of guardianship itself can be a very brief document or just a paragraph in a will or a trust. So use this article as a resource as you make these tough decisions… but only take what works for you. Nominating guardians need not be a life event. However you complete the process, you will find a new level of peace of mind.
Reprinted with permission from author Diedre Dennis Wachbrit, Attorney at Law, Thousand Oaks, CA. Please contact Attorney Wachbrit (Diedre@Wachbrit.com ) for permission to use this article. Reprinted with additional content by Eden Rose Brown, Esq.
Copyright © 2004 Barry W. Finkelstein JD
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