Choosing a guardian is no easy task for parents especially when, frankly, estate planning itself (especially when you’ve got young kids) can be an all around heavy emotional load. However, taking steps to line up these decisions will ultimately create more stability for your children should the unthinkable happen.
If you’ve got young children or care for a special needs adult, the primary reason to create a Will is to name a guardian if something happened to you and/or both parents. Given the magnitude of this decision should you listen to your kids and ask for their input?
Similar to purchasing Life Insurance, a Will offers peace of mind and can protect your children or special needs adults from a messy, unpleasant, or dire situation. What parents may not realize is that if they don’t name a guardian it’s up to the court to decide the child’s best interest. If there’s no suitable family member or close family friend that can make a strong case, your children could end up in foster care (or receive improper care in the case of a special needs adult). While that’s a worst case scenario, why take a chance? Plus, you can name a guardian at any point of your child’s life and can change it at any time, but making the decision can be the hardest part.
While choosing a guardian ultimately falls on the parents to make the final decision, “it seems like common sense that children should have a say,” notes Attorney Anne I. Treimanis. Especially if your children are older, it could be wise to discuss options with them after you’ve narrowed down your list of potential guardians. “In most states the child, if they are 14 years old, can choose their own guardian, or at least state their preference,” Treimanis advises. It’s important to remember however that if no legal guardians are selected, a child's preference may not matter. “The judge could disregard their choice and make a decision using what is in the best interests of the child standard,” warns Treimanis.
Deciding on a guardian ideally should be a parent/child decision if the children are older, and parent only decision if children are young. More than one guardian can be named if there isn't one person in your life that suits the role entirely, and you can even split up the job. “Sometimes one person doesn’t meet the child’s needs so the responsibilities can be shared,” says Treimanis. "The financially savvy person gets to be the financial guardian and the loving person becomes the custodian guardian.”
“The guardian really needs to care about the kiddo, be somewhat stable, have the maturity, stamina, kind disposition, and patience to care for them,” Treimanis concludes. While nobody will ever replace a loving parent, a loving parent can do the right thing and create an estate plan with their children’s best interests in mind.
Important Takeaways For Choosing A Guardian
Make your choices now. While it’s always better to create a Will sooner than later, it’s never too late to get started. Plus, it’s not as hard or expensive as you think – some are even free, which is fine for simple estates or if your main purpose is to name a guardian (some protection is better than none). Check out our guide to Online Legal Resources or do a Google search and find a service you’re comfortable using.
You can always change your Guardian. You can name a primary guardian and alternate guardians, and change any or all of them at any time. Sometimes a guardian might have a major life change that makes them unsuitable, for example divorce, sickness, relocation, or you simply don’t like or trust that person anymore. Once your children are older you may decide another relative or friend is a better choice given your kids maturity and developmental level.
You can choose more than one Guardian. Many lawyers will advise naming alternate guardians as the safe and smart way to go.
You can split the responsibility of guardianship between financial (fiduciary) and custodian (legal guardian). Ideally if you decide to split the role, it would be best if you know that the two individuals will be able to work well together. Check out “How To Appoint Different People As Guardian Of A Person And Guardian Of The Estate” to explore this option.
Let older children have a say. If your kids are older and you’ve finally gotten around to creating an estate plan, or if you’re making a change to an existing estate plan, there’s no harm in discussing your choices with your children. While it may seem like a scary conversation it can actually help children knowing there's a loving friend or relative there to help in case of an emergency.
Questions To Start The Conversation
This shouldn’t be a heavy talk – save those for when your kids start dating. Before the talk, take into account your child’s age and emotional maturity. Here are three basic conversation starters, which you can cater in your own way, so you get the information you need without it going off the rails:
- Who would you pick to take care of you instead of us (not that we’re going anywhere, and it has to be someone you know…Tom Hanks isn’t an option)?
- What makes this person so special to you? Is it because they always give you what you want whenever you ask, or is it something more?
- Who would be your last choice? (This is really useful in opening an entirely different dialog that can be helpful in other ways.)
Finally, please don’t make this about death. At all. You’re trying to find out who your kids like and trust, which should also align with your values. The choice is still yours to make and this can help you make a more informed decision, especially if you and the other parent are having a tough time picking a guardian, which is a totally different issue you can save for another day.