How To Choose A Guardian For Your Children
If you die and your children are still under age, they will need a legal guardian. The legal system will decide who will act as guardian. You can have input into the decision. Your input is usually given a great deal of weight unless there is a good reason not to.
When thinking about who to choose as guardian, keep in mind that each child has two very distinct needs: the personal aspects of your child's life and your child's finances. You can choose two guardians (one as a personal guardian and as a financial guardian), or one person can take on both roles, just like you do.
It is advisable to name an alternate guardian in case your first choice can't serve, is not acceptable to the court, or stops serving for any reason.
Open communication with your children, spouse, and potential guardians, and a careful look at the other considerations discussed below can help you choose a guardian for your children who would help them to thrive and become the individuals you hope they will be.
Factors To Consider When Choosing A Guardian
Factors to consider when choosing a person to serve as guardian include:
- Your children's preferences. Many therapists suggest that children should be involved in identifying a guardian. At the least, make sure that your child knows and is comfortable with the prospective guardian.
- The other parent's opinion. Be sure to discuss your choice with the child's other parent. If you are naming a guardian in your Will, you and the other parent should agree on the same person and name him or her in each of your Wills.
- The prospective guardian's wishes, energy, resources, and support.
- Does he or she have the energy and physical and mental capability to be a guardian?
- Is she or he willing to take on this responsibility?
- Does she or he have the time, finances, and people to help when necessary?
- Speak with a prospective guardian before naming him or her. Explain your request, why you've chosen that person, the money that will or won't be available to care for the children, and whether the person will be paid a fee to act as guardian. Give the person plenty of time to think about the responsibility and consequences of becoming, in effect, the parent of your children.
- The prospective guardian's marital status. If you are considering naming a couple as guardian, be sure to state what happens if they are no longer married or if they no longer live together. If it can be avoided, it's better not to have your children become part of a messy divorce or even of a separation.
- The prospective guardian's age and maturity. A guardian must be an adult -- 18 years old in most states. However, just because a person is legally an "adult" does not mean the person is ready for the responsibility. At the other extreme, consider the person's life expectancy and health: is it likely that he or she will outlive your child? If not, you may still want to appoint that person as guardian, but an alternative becomes even more important.
- The prospective guardian's other children (if any).
- Are the person's children of an age close to that of your children?
- Do the kids get along?
- Would those kids be a good or bad influence on yours?
- Would your children have to move? What would the consequences be to the child - such as transferring to a new school and moving away from friends?
- The person's background. The court will probably check to see if the person has any prior complaints against him or her, particularly concerning child abuse. Any kind of record can disqualify the person from serving as guardian.
- Include your views on education, moral upbringing, religion, possibly nutrition and exercise, and any other matters of importance to you.
- Does the prospective guardian share your views?
- What are his or her thoughts on religion, education, and ethics?
- Whatever his or her personal beliefs, will he or she do what you ask?
- Do you believe the person will live up to his or her agreement?
It is advisable to have a similar discussion with any person you consider as an alternative guardian as well.
Consider making a recording or writing a letter that includes your thoughts and feelings about how your child should be raised. It will be a reminder for the guardian in case any questions arise. Try to find a balance between making your thoughts known and including too much detail. You want your guardian to be able to be flexible as facts and times change, while adhering to the essence of what you care about. Give a copy of the letter or recording to each guardian and alternate. Store an additional copy with your Will.
Choosing Someone Other Than The Surviving Parent
Since courts generally favor appointing the other biological or adoptive parent as guardian, try to obtain the other parent's written agreement for your choice of guardian. If that doesn't work, get together with an attorney to build a case that explains why a judge should rule that the other parent is not suitable as guardian.
A judge will normally grant custody to someone other than the surviving parent only if the other parent has legally abandoned the child by not providing for or visiting him/her for an extended period or is clearly unfit as a parent. It is usually difficult to prove that a parent is unfit, except with evidence of serious problems such as chronic drug or alcohol abuse, mental illness, or a history of child abuse.
If you foresee a problem, you can ask the court to rule now about the fitness of the other person as a guardian. Or you can store a letter explaining the situation with your Will or give it to your attorney. Include concrete examples that show why the person shouldn't be guardian including examples that can be backed up by other people. Include an affidavit from those people with your letter.
Choosing Someone Other Than Relatives To Act As Guardian For Your Child
If there is no surviving spouse, as a general matter, next in line to be guardian are your parents or your brother or sister. If this is not the best choice for your situation, pick the best person for your children. Don’t worry about hurting your relatives’ feelings.
If you think one of your relatives will step forward and attempt to become guardian, attach a letter to your Will or give it to your attorney explaining why you do not think that person, or any other close relative, would be the best choice to be guardian for your children. Give examples. If possible, include affidavits from other people which support your claim that the person should not be guardian.
Choosing A Separate Person To Manage Your children's Finances
You might want to name one person to live with and make personal decisions about your children, and another person to manage their finances. A person who is limited to taking care of the finances is called a guardian of the estate.
Another option to consider is naming both people as co-guardians.
- You could then describe that you want one person to be in charge of the children's personal lives and the other in charge of the finances.
- Make sure it is clear which co-guardian is to have responsibility for what.
- Understand that legally both people may have authority to act without regard to the division of functions you create. Each person needs to be trustworthy to not overstep the boundaries you establish.
Also make sure that your Will contains a provision for handling the situation in which both co-guardians have a say, and what happens if they deadlock. In this type of scenario, you could specify that a close family member or friend who knows your children well will be consulted and be able to make the final decision.
Choosing Different Guardians For Different Children
You can name different personal and/or financial guardians for different children.
You might want to do this if the children are not particularly close and have strong attachments to different adults outside of the immediate family. For example:
- One child might be close to your brother while another spends summers and weekends with your parents.
- You may have different children from different marriages who are each close to a different adult.
Don't play down the importance of keeping the children together if they are close -- and maybe even if they're not close. Speak with a qualified mental therapist such as a psychologist, psychiatrist or licensed family therapist if you have questions about the effect of various choices on your children.