Legally Speaking: Choosing the right guardian

Legally Speaking: Choosing the right guardian

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: I am starting to work on my estate plan and am having trouble deciding who I should name as guardian of my three children in the event I die when they are still minors.

THE QUESTION: Can you provide some guidance on what factors I should consider when making a decision about an appropriate appointment?

THE ANSWER: I can certainly provide guidance about choosing a guardian but I want to first commend you on planning ahead. So many people put off estate planning and the end results are often less than optimal.

After many years helping clients develop their estate plans, I have come to the conclusion that the decision as to who will serve as guardians of their children is the most difficult decisions my clients face. This is particularly true when the client does not have family in the area. That being said, there are certainly situations where friends may be more suitable guardians than family members.

When choosing a guardian, you want to name someone who is willing and able to raise your children in an environment similar to the one they are familiar with and one in which they can thrive. Whoever you chose as guardian should have values that are similar to yours and be willing to love and nurture your children.

Not only should you look at the relationship between the person you are considering as guardian and your children but also the relationship between that person’s children and your own. Are the children similar in age? Do the children get along? Do they have common interests? If the proposed guardian does not have children, is that because she doesn’t want children? These are the sorts of questions you should be asking yourself.

Since you will likely want your children to continue to have a relationship with your family regardless of who is appointed as guardian, the relationship between the guardian and family members may be a factor.

Where the proposed guardian lives and her living arrangements also come into play. Does the guardian live locally so that your children can stay in the same school district or will they have to relocate out of state? Does the guardian have room to take in three children or will the guardian need to build an addition or move in order to welcome your children into her home? If the guardian’s living arrangement is not suitable, does she have the funds to remedy the situation?

While money should not be the overriding factor in deciding on a guardian, if the person you want to name does not have the means to take in and care for your children, you can address this issue in your will. By setting aside assets in a testamentary trust which can be distributed to the guardian to cover certain costs, you can decrease the chance that the guardian will suffer economic hardship as a result of caring for your children. Funds that remain in the trust when your youngest child is no longer a minor can be distributed to your children.

While the discussion above is far from exhaustive, it sets forth many of the things you should think about when deciding on who to name as guardian of your children. However, do not assume that the decision is yours alone. Ask the person you would like to name as guardian if she is willing and able to accept the responsibility of raising your children. Upon your death, you don’t want the person you named as guardian to be surprised.

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected]