An important decision when creating your will is the naming of the guardian for your minor children in the event of your death. The need to designate a guardian is especially important if you are a single or surviving parent. Even when both parents are alive, a guardian should be designated to protect children should both parents die in a common accident. Many considerations need to be weighed when selecting potential guardians—it is different from bestowing the honorific title of Godparent on a family member or close friend.
Throughout my career, I have found that the difficulty a couple has in agreeing on potential guardians for minor children is without question the primary obstacle to completing the drafting of wills. No other decision even comes close! Often, the sole point of agreement among such couples is that there aren’t any obvious choices. Yet minor children need designated guardians. A choice must be made; some choices are better than others; and, almost any choice is better than leaving the decision to the discretion of the courts.
Without prioritizing, some of the considerations that should be taken into account when choosing a guardian include the following:
Lifestyle fit
When selecting a guardian, the person’s age and life situation should be a major consideration. Requesting that a relative or friend raise your children is a pretty big “ask.” Although a potential guardian likely will need to adjust his or her lifestyle, there are stages in one’s life when taking on such an enormous responsibility makes little sense. If your children are in elementary school or younger, selecting a potential guardian whose children are grown and out of the house would require him or her to make a major lifestyle adjustment. This also is true when naming someone who is single, or a couple without children. Very often naming your own parents as guardians, while understandable, can impose a very difficult burden on them. Depending on age differences, it may be appropriate for an adult child to be designated as a guardian for younger siblings.
Location
Choosing a guardian who lives in close proximity to you is ideal. For a child who has lost his or her parents, losing the familiarity of friends and school greatly adds to the trauma. Although location is a secondary consideration to a loving home, it can be a tiebreaker when one is fortunate enough to have more than one viable option.
Financial circumstances
Accepting the guardianship for your children is a significant responsibility; it doesn’t need to be a financial burden as well. As part of your estate planning, we often recommend a trust arrangement—managed by a trustee other than the guardian—be considered to provide for your children’s direct expenses. Furthermore, the potential guardian’s financial situation should be considered, especially when that person may have children of his or her own. As an example, it would be awkward if your child has funds set aside for an education, yet the guardian’s children will be saddled with student loans. There are many other situations where the disparity of finances comes into play, and where thoughtful estate planning may offer solutions.
Depending on the financial circumstances, you may want to consider including in your will either a direct bequest, a separate trust, or other financial provisions for the benefit of whomever qualifies and accepts the role of your child’s guardian.
Other considerations
Perhaps you have a potential guardian who is the perfect choice in every way; such is the exception to the rule, and you are indeed fortunate. An “acceptable” choice should not be confused with a perfect choice. In too many cases the search for perfection holds up the drafting of estate documents where even a sub-perfect choice would be far better that leaving the decision to a judge.
So far, I have been referring to a potential guardian in the singular form. Very often the potential guardian is married or otherwise in a relationship. To protect against the possibility of their divorce or separation, I encourage the naming of a singular guardian, as you never would want the custody of your child to be in dispute. That said, naming one or more successor guardians is an excellent idea as people’s lives evolve and the future is uncertain. Furthermore, one should always ask a potential guardian for permission for you to name him or her in your will. Not doing so, in my opinion, is a big mistake.
Your choice of a guardian for your children should be based on his or her ability to fulfill the role of a substitute parent. While the naming of your children’s Godparents has ceremonial importance, the practicalities and responsibilities of a guardian are far more extensive, requiring far greater care and consideration.
Editor’s Note: Rob Clarfeld, CPA, CFP® and Great Barrington resident, has extensive professional experience helping people achieve their financial goals. The author does not provide tax, legal, financial or investment advice. This material has been prepared for informational purposes only. You should consult your own tax, legal, financial and investment advisors before engaging in any transaction.
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