I was recently asked by a new client what I find to be the main thing couples struggle with when it comes to making, and agreeing on, estate planning decisions. It was an easy answer – naming who will be the guardian(s) of their children.
Not only is this an important decision, but it is also a very emotional one. It is not uncommon that couples have an idea of a few individuals they might want to name, but are unsure as to who they want to name as a primary, and who should be named as backup. It is also a frequent occurrence that couples have differing ideas of who would be the best suited to name as primary guardian.
Here are some tips, and factors to consider, that can help make this important and difficult decision an easier one:
- Define Different Purposes. There are a couple types of guardians you may nominate in your estate plane. First, guardians of your children’s person – meaning who will care for your children and raise them while they are minors. The other role is the guardian of money and assets – oftentimes called a Custodian or a Trustee. These may be the same person, but do not have to be.
- Match Attributes. It is prudent to nominate individuals for roles that match their strengths. If you have a brother who is wonderful with children, but can’t seem to balance his checkbook or live within his means, he may be great to name as physical guardian, but not the best choice to manage money and assets. While many parents name the same person as guardian and custodian/trustee of money for minor children, you may list different individuals who thrive in each respective role.
- Shared Values. It may be ideal to choose someone you know well, who shares your goals, values and parenting style. Many parents desire that, in their absence, their children will be raised by someone who is able and willing to instill the values they would have. It is also worth taking into consideration the character of who you are naming. For example, it may not be best to nominate someone that the court would not approve, such as someone with a history of drug abuse and/or a criminal record.
- Talk It Over. This is perhaps the most important advice I give clients. Not only is it important to talk this over so individuals that you are naming are aware that you are nominating them, but it can also be extremely influential in helping you to make the decision. I met with a couple who had confidently decided who they wanted to name as a primary guardian – we will call her Grace – and who they wanted to name as a backup guardian – we will call her Francine. They were certain that Grace would be ecstatic about the role, and predicted that Francine would reluctantly agree. I recommended that they have conversations with these individuals. When they spoke to Grace, she had reservations and was worried about the added responsibility as she already had 3 children of her own. However, when they spoke to Francine, she wept because she was so touched and excitedly accepted and welcomed the responsibility. Needless to say, the order in which they named these individuals switched! Many of my clients have similar experiences, conversations like this greatly impact their decision.
- Put It In Writing. Last, but certainly not least, it is imperative that you draft and execute the necessary documents to make these wishes legally binding. An estate planning attorney can advise you on the proper procedure, prepare the necessary documents, and make certain they are legally executed and enforceable.
As you are starting the process of getting your estate plan in place, one of the most crucial questions you will have to answer is who you want as guardian for your children. In addition to making the decision, there are a number of important legal aspects to consider. Schromen Law, LLC can help to answer your questions and guide you through the process of establishing a complete estate plan, to plan for the protection and security of your family. Contact Schromen Law, LLC to schedule a free consultation today!
The material contained herein is for informational purposes only, and is not intended to create or constitute an attorney-client relationship between Schromen Law, LLC and the reader. The information contained herein is not offered as legal advice and should not be construed as legal advice.