If you don’t nominate your child’s guardian and a tragedy strikes your family, the court will and it may not be whom you would choose. In fact, it may be your alcoholic brother, Mike, crazy Aunt Mable, or the foster care system. Choosing a guardian for your children is uncomfortable, but it’s better than the alternatives and part of the Estate Planning process.
Where You Appoint a Guardian
You nominate a guardian for your minor children in your Will. That is true even if you have an estate plan based upon a revocable living trust.
Guardian of the Person Versus Guardian of the Estate
You need to choose a guardian of the person to have physical custody of your children with the authority to make lifestyle, general welfare, educational, and health care decisions.
The guardian of the estate can be the same person or a different person than the guardian of the person; he or she manages the assets you leave for your minor children. If you implement trustee planning (and you should if you have minor children), the need for a guardian of the estate may be obviated by a trustee for assets being held for the benefit of a young child.
One important benefit of using a trustee to manage assets instead of a guardian is that a guardian of the estate expires on the child’s 18th birthday while a trust for a young person can extend into adulthood and can be tailored to be used for important purposes such as education.
Communicate with Your Potential Guardians
Before nominating potential guardians, be sure to ask permission. Your loved ones may indeed love and enjoy your children, but not feel up to the task of raising them. It’s better for them for the potential guardian to say “no” now, rather than later.
Name Contingent Guardians
Because life changes as it unfolds, those you nominate as guardian may not be able to serve when the time comes. Health changes, couples get divorced, families move, and other challenges arise.
Be sure to name back-up guardians in case your primary guardian(s) is unable or unwilling to serve.
Please continue reading, How to Choose Your Child’s Guardians, part 2 of this article.