Choosing a Guardian

On October 14, 2017, my husband and I welcomed our first child to this world. It has been an exciting—and exhausting—three month transition from a family of two to a family of three. Babies frequently bring both joy and stress to new parents. Dealing with doctor’s appointments, finding a suitable daycare, and ensuring baby is hitting her milestones are all common worries new parents face. Unfortunately, parents tend to place estate planning on the back burner, and focus on more immediate concerns. To make the process more manageable, I have a few recommendations on how to tackle the toughest estate planning question new parents face: whom to name as the child’s guardian. While there are many variables to consider, this newsletter will cover the most common: family, age, and values.

First, what is a guardian’s job? A guardian has physical custody of a child. This is the person (or people) who will be physically housing and caring for the child. The guardian does not manage the money parents have set aside for the child’s care—this “money manager” is called a trustee. Although parents may choose the same person to serve as guardian and trustee, it is not required. Frequently parents purposefully choose different guardians and trustees to prevent guardians from overspending. Because the guardian does not manage the child’s funds, financial acumen is not nearly as important for a guardian as it is for a trustee.

Most people will start their guardian list by looking at other family members. Whether you pick siblings, parents, or cousins, a family member seems like a natural choice. I have clients, however, who do not have a family member who would be a good fit. In these circumstances, friends can also be a suitable choice for a guardian. In my own documents, I list close friends as a backup if my family cannot serve. Although I always recommend talking to a potential guardian ahead of time, this is particularly important to do if you are considering listing a friend as your child’s guardian.

Many new parents want to name their own parents as potential guardians. Although grandparents can be a great option, remember that this job can last up to 18 years. In my own documents, I skipped my parents’ generation. I trust my parents to care for my daughter as their own; however, they will be well in their 80s by the time my daughter graduates high school. I want them to enjoy retirement, so my daughter’s guardian list starts with her aunt and uncle.

Finally, parents may want to consider how well their values and priorities match the potential guardian’s. These values can include religion, child rearing philosophy, or prioritizing education, music, or athletics. At the very least, parents should consider talking to the guardians ahead of time to ensure they will be a good fit.

The most important step to choosing a guardian is, of course, to complete an estate plan and make the choice in writing. If parents do not name a guardian, not only do they have no say in who raises their children when they pass away, but they also open the door to disputes among family members. Contested guardianship proceedings are contentious and expensive. Choosing a guardian ahead of time through a well-written estate plan protects most precious legacy—your children—from uncertainty and confusion at a difficult time.

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