Choosing a guardian is often the primary motivating factor for parents creating an estate plan. But it’s also a big reason many parents put it off.
But don’t let the search for the perfect guardian stop you from choosing a good guardian, or any guardian at all. Whoever you choose is better than having the court decide for you. Even if the best option is not a perfect option, get your proposed guardians down in writing, and update them later if you come up with better options or change your mind. Life changes — your choice isn’t set in stone.
If your family ever finds themselves in the difficult situation of needing a guardian for your kids, they will need both the comfort of knowing what you wanted, and the legal power to do it. Don’t make a judge decide for you; even if he or she is the most conscientious person in the world, judges are limited by the law, and the fact that they don’t know your family, friends, or priorities. If you decide – now – you can take into account the factors that are most important to you.
So let’s back up for a minute. What is a guardian? A guardian is someone who would take care of your minor children if you can’t. There are two parts to this: personal and financial. A guardian of the person ensures that your kids have a home, a safe place to sleep, food, clothing, and education. A guardian of the estate manages your kids’ inheritance and uses it to pay your kids’ expenses until they’re 18.
The guardian of the person and the estate can be the same person or different people. If you have someone in your life who you trust both with your kids and with their money, great. It may make sense to name one person (or one couple) as both guardian of the person and guardian of the estate.
But what if your brother is great with kids but not good at money management, and your friend is very organized and great with money but lives somewhere you don’t want your kids to live? These two roles require different skills, and you can name different people.
So how do you choose? For both guardian roles, the most important question is: Who do you trust to do a good job and follow your wishes? Some other questions to consider:
Guardian of the Person:
- Where does the guardian live?
- Are you comfortable with the guardian’s values?
- Is the guardian able and willing to take on this role, if they had to? Is this likely to change?
Guardian of the Estate:
- Is the guardian good with saving and managing money?
- Is the guardian organized and good at recordkeeping?
- Is the guardian good at meeting deadlines and financial obligations?
Choosing a guardian now lets you choose who takes care of your kids if you can’t, avoids friction between family members, and reassures your kids that you planned ahead for them and that they are where you wanted them to be. Putting it off won’t prevent the possibility of a terrible situation — but it does prevent you from being the person who chooses.
If you are having trouble deciding, talk it through with someone you trust. A friend or family member may be able to suggest something you hadn’t thought of, validate your feelings, or otherwise help you get unstuck. An experienced estate planning attorney can also help you work through your options, suggest solutions, and recommend professionals.
By Marisa C. Nelson - an Estate Planning and Probate Lawyer out of the Bay Area. Learn more about her at: www.marisanelson.com