Help Choosing a Guardian for your Children

Posted on June 1, 2011

Choosing a qualified Guardian for your children is one of the most difficult things my clients ever have to do. For many, they can’t do the rest of their estate planning until they resolve this issue. And then the planning doesn’t get done.

Here are a few suggestions and tips to naming a Guardian for your children:

1. Family is NOT required. You do not have to name family members. You can pick anyone you wish.

2. No matter who the guardian is, make sure that both of your families have access to the children. This should include age appropriate taveling to meet with relatives who may not be local. It is important that the guardian understand, from the nomination document, that you expect this. It is not uncommon for the guardian to not like the other sides family. He or she may think they are a bunch of uncouth hillbillys and a bad influence on the children. But these are your children. You should decide who should have influence.
By the way, we generally suggest that the guardian create a web site for the child and keep it updated with school photos, information regarding activities and such.

3. Have Backups. Life happens. Sometimes the person that we are counting on to be the guardian has some drama in their life at the time they are needed. Perhaps they were in the car with you when you had the accident? Make sure that you have enough people on your list, so someone you trust will be appointed the guardian.

4. You Don’t Have To Ask Everyone You Put On The List. I would recommend that you ask the first or second choice whether they are interested and get a commitment from them, if possible. However, we often will have clients give us a list of 15 names. I don’t expect the client to ask all 15. But if, God forbid, anything happens to your primary choices, it is better to have someone on the list who is willing, then to have your children go into the Foster Care System because nobody steped forward. Sometimes, people will only step forward if they are asked. Otherwise, they may not even know there is a need.

5. Only Nominate Individuals. I do not recommend nominating couples. What if the relationship falls apart. Do you want your children part of their custody battle?6. Make Good Use of Contingincies. Instead of nominating a husband and wife, if you want a couple to raise your children, use a contingency. For example, “Mary, if she is married to Bob.” You can use a contingency for location, such as: “Alice, as long as she lives in Los Gatos.” Or perhaps you want to broaden that to Northern California. If Alice moves to Arizona, she is no longer an acceptable guardian.