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You’ve selected a medical agent with ease, you’ve decided on an Executor under your Will . . . and now you’re faced with perhaps the greatest decision you’ll make while estate planning: who will care for your children if you’re gone?  In client discussions, this tends to be the issue that causes the most debate and discussion, with clients sometimes delaying their estate planning altogether because they can’t decide whom to appoint.  First a few notes on why this is an important clause in your documents, followed by several factors to consider when deciding.

Why this is important: it’s your children!  Who raises them will have an incredible impact on who they become, so it’s clearly a decision to take seriously.  In addition, a judge won’t know your morals, your values, what traits you want your Guardian to possess, etc.  If you don’t specify your Guardian, anyone can step forward to request the role.  Which not only leads the decision largely up to chance, but also increases the likelihood of serious conflict developing among family members.  For children already traumatized by your loss and stressed at the coming changes, why compound the difficulty?

When deciding, the first thing to remember is that no Guardians will be perfect.  No one will have exactly your values, beliefs and attitudes regarding raising your children.  So if no one jumps out as the ideal candidate, that’s natural.  If looking for that ideal Guardian is proving difficult, focus your effort instead on avoiding the worst.  A great Guardian on paper is better than the perfect Guardian in your mind.

When deciding, consider both what’s best for your child and the situation of your potential Guardian.  A few questions to consider:

  • Whose values, morals and beliefs are most similar to yours?  Whose parenting style would match yours?
  • Does your child already have a relationship with a family member or close friend?
  • Would your child have to move to a new school or new state to live with the Guardian?
  • Who has the emotional, physical and financial capacity to raise your children (Remember that inheritance and life insurance have the potential to address many financial concerns, so should be factored in to this consideration)
  • Does your potential Guardian have other children?  Would they be able to provide equal attention to yours?  Would all of the children get along?
  • Does your Guardian have the temperament to deal with the specific personalities of your children?

Once you’ve made a selection, discuss this with your potential Guardian to make sure they agree.  If you’re also considering this person for the role of Trustee, go here to read some of the pros and cons of doing so.

Occasionally couples will want to nominate different Guardians under their Will.  This is strongly discouraged.  If anything happens to one of you, the surviving spouse (barring some extreme circumstances) will get custody of your children.  The Guardian provision is only likely to be relevant if both of you are unable to raise your children.  Review the considerations above and do your best to come to a decision.  If all else fails, remember that even your second-choice Guardian is likely a better choice than leaving it up to the judge.

For further questions about selecting a Guardian or to put one in place to protect your children, fill out the form below to set up an appointment.


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Disclaimer: This material is intended for general information purposes only and does not constitute legal advice.  Responses to inquiries, whether by email, telephone, or other means, do not constitute legal advice, nor do they create or imply the existence of an attorney-client relationship.