Legally Speaking: Choosing a guardian for your minor children

By Linda Toga

THE FACTS: I have three young children and want to be sure that they will be taken care of in the event my husband and I die before they are adults. I understand that I can appoint guardians for my children in my will but I am having a great deal of difficulty deciding who to name.

THE QUESTION: Do you have any suggestions as to the things I should consider when naming guardians for my minor children?

THE ANSWER: It is not surprising that you are having difficulty deciding who would best stand in your shoes in the event you and your spouse die before your children are adults. As an experienced estate planning attorney and the mother of two wonderful children, I know that the decision with which you are struggling is the most difficult estate planning decision faced by most parents. It is hard to think about not being there for your children and even harder to picture someone else taking your place.

However, if both you and your spouse die while your children are minors, the appointment in your will of a guardian for your children will likely prove to be the most important appointment you make. It is one that requires a great deal of thought and soul searching. Although people have different priorities when it comes to how their children will be raised, every parent wants their children to be loved, to be safe and to be able to reach their potential. Whether these goals will be achieved undoubtedly depends in large part upon the parenting skills of the children’s parents and guardians.

When considering who you would like to step into a parental role with your children, you should give thought to the following:

• Is the person married or single? If married, do you want to name both spouses as co-guardians? What happens in the event of death or divorce?

• Does the person have children? Do you approve of the person’s parenting skills as applied to his own children?

• Is the person’s house/apartment large enough to accommodate your children? If not, is the person willing to relocate?

• Is the person’s lifestyle “child friendly,” i.e., does he travel extensively or for long periods of time or work irregular hours, and if so, who will be there in his absence to care for your children?

• How old is the person and how is the person’s health?

• Is the person financially stable and can the person afford to include your children in his life?

• Does the person share your values, i.e., does the person place the same importance on education, religion, community etc. that you do?

• Does the person get along well with your children and your extended family?

• Would placement with the person require your children to move from your current community and possibly away from other family members?

While this list is not exhaustive, it gives you a good starting point for considering who to name as guardian of your children. Many people choose family members as guardians. However, the fact that someone is related by blood does not necessarily mean that that person will be able to raise your children as you would. Your parents may be very loving but are they physically able to take on the challenge of young children?

Your siblings may share some of your values; but, perhaps they are less focused on education than you are, or are reckless with money. Your experiences growing up and your family dynamics will certainly influence your thinking when it comes to naming a guardian. It is absolutely critical to talk to the person you plan on naming as guardian so that you can discuss your concerns and your wishes and confirm that the person is willing to take on the huge responsibility that comes with being a guardian.

Ask the person how he would handle certain situations that may arise, how he feels about issues that are important to you and about how having to care for your children will impact his life. Make sure the potential guardian understands what is involved in being named guardian of your children and urge him to be honest and candid when responding to your questions.

If you decide that you have the perfect person to serve as guardian but are concerned about the adverse financial consequences of that person raising three more children, you can make arrangements in your will to provide the guardian with financial support. Similarly, if a potential guardian meets your criteria but lives in a small apartment, in your will you can include provisions that would allow the guardian to move into your home to care for your children or you can provide other appropriate housing. In your will you can also state your wishes with respect to how your children will be raised.

You can instruct your guardian to seek input from your family before making important decisions about your children’s futures and you can set forth the values that you would most like to see instilled in them. As if choosing a guardian is not difficult enough, in your will you should name both a guardian and a successor guardian. If something should happen to the named guardian, it is better if you, as opposed to the courts, name the person that will continue caring for your children. This is one of the things that is simply too important to leave to chance.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate and estate administration, real estate, small business service and litigation from her East Setauket office.