As parents, we do everything possible to protect our children. Yet surprisingly, nearly two-thirds of adults have not designated a legal guardian for their minor children in their will. This oversight could leave your children’s future in the hands of the courts should the unthinkable happen.
Why Naming Guardians Is So Critical
When making a will, naming a guardian for minor children can give parents peace of mind that, should the improbable happen, the right person will raise their children. Without this crucial designation, a judge will decide who raises your children, potentially resulting in outcomes that don’t align with your values or wishes.
If you want to have a say about who raises your children, you need to name a guardian before you die. Without knowing your wishes, a judge could appoint someone who would raise your children in a way that goes against your values. For more information on what happens if you don’t designate a guardian, visit the American Bar Association’s resource page.
Even more concerning, research published in The Lancet highlights that over a million children worldwide lost one or both parents between March 2020 and April 2021 due to the COVID-19 pandemic. You can read the full study here. While we hope never to face such circumstances, proper planning ensures your children’s well-being remains protected.
Understanding Different Types of Guardianship
When planning for your children’s care, it’s important to understand there are two primary types of guardians:
A personal guardian, often called a “guardian of the person,” makes decisions about a child’s day-to-day well-being, including physical, medical, and educational needs. This guardian will make decisions about how the children are raised.
A property guardian, often called a “guardian of the estate” or a “conservator,” makes financial decisions for a child and manages the child’s property. This guardian will decide how to invest and spend the child’s money for the child’s well-being.
While you can name different people for these roles, it’s usually best to appoint one person as both the personal guardian and the property guardian, if your choice is capable of handling both roles. The Legal Information Institute provides more detailed explanations of these guardianship types at www.law.cornell.edu/wex/guardianship.
How to Choose the Right Guardian
Selecting someone to raise your children is perhaps the most significant decision you’ll make in your estate planning. Consider these important factors:
When naming a guardian, be aware that to become a guardian, a person must normally be at least 18 years old and mentally competent.
Beyond legal requirements, if you want what’s best for your children, you need to give your choice of guardian serious thought. Consider the potential guardian’s values, parenting style, physical capability, and financial stability. Will they raise your children according to your moral, religious, or ethical beliefs?
Most parents tend to appoint family members as guardians, especially when the children are very young. However, as children grow older, friends who share similar values and lifestyles may be more appropriate choices.
Before you name your guardian and alternate guardians in a will or other legal document, talk to them. Make sure they’re willing to take on this responsibility and understand your expectations for raising your children. For helpful conversation starters, visit the Family Guardian Network .
The Importance of Naming Backup Guardians
Life circumstances change, and your first choice for guardian might be unable to serve when needed. Be sure to name back-up guardians as well in case your first choice is unable to serve if the time comes. It’s essential that you name contingent guardians in case your primary guardians are unable or unwilling to serve.
Life does indeed change, so be sure to also indicate who gets the kids if guardians divorce. This level of detailed planning can prevent future complications and ensure your children’s care remains stable even if your guardians’ circumstances change. For examples of contingency planning in guardianship nominations, check out the National Guardianship Association’s resources at www.guardianship.org/resource-library.
Formally Appointing a Guardian
Guardians for your minor children must usually be named in a will or a separate guardian nomination document. The process typically involves:
- Deciding on the Number of Guardians: Determine how many people you want to share the responsibility of caring for the children.
- Choosing the Guardians: Discuss the role with the individuals you wish to appoint to ensure they are willing to take on the responsibility.
- Include Their Names in Your Will: Clearly state the names and relationships of the chosen guardians in your will.
- Ensure the Will is Legally Valid: Sign the will according to legal requirements to ensure it is valid.
- Store the Will Safely: Keep the will in a safe place where it can be easily found after death.
Guardianship appointments typically take effect after the death of the second parent. It is usually easier if both parents appoint the same guardians in their wills. For state-specific requirements on appointing guardians, visit the Nolo legal encyclopedia.
The Role of Children in Guardian Selection
For older children, particularly teenagers, a judge might ask a child’s opinion—especially if the child is older—if there is any question whether appointing the parent’s choice would not be in the child’s best interests. Even if the judge doesn’t question a guardian’s fitness to serve, older children—usually 14 or older—can ask the court to appoint a different guardian.
Consider discussing your choice with your older children to ensure they feel comfortable with your selection. For more insight on including children in the guardian selection process, visit the Child Welfare Information Gateway.
Don’t Delay This Critical Decision
Even though it’s hard and no one can raise your children as well as you can, move forward, put a plan in place and select the guardians you think will muddle through the best and provide your children with the love they will deserve. Some people delay estate planning because they can’t make this decision. Don’t do that; your inaction puts your children at risk.
Take Action Today
For parents of minor children, naming guardians is the most important estate planning decision you’ll ever make. Now is the time to get this crossed off your to-do list and get your kids protected.
Our experienced estate planning attorneys can help guide you through this critical decision and ensure your guardian nominations are legally sound. We understand the emotional weight of this decision and can provide the legal expertise to give you peace of mind.
Don’t leave your children’s future to chance. Contact our office today to schedule a consultation and take this important step to protect your children’s future.
