Parents with minor children need to name someone to raise them (also known as a legal guardian), in the event both parents should die before the child becomes an adult. While the likelihood of that actually happening is slim, the consequences of not naming a guardian are great.
If no guardian is named in the parent’s will, a judge—a stranger who does not know the parents, the child, or their relatives—will decide who will raise the child without knowing whom the parent would have preferred. Anyone can ask to be considered, and the judge will select the person he/she deems most appropriate. On the other hand, if the parent names a guardian (typically via the parent’s will), the judge will usually go along with the parent’s choice.
Choosing a Guardian:
The guardian does not have to be a relative, so parents should consider and evaluate all candidates:
Parenting style, values and religious beliefs should be similar to their own.
Location could be important. If the guardian lives far away, the child would have to move from a familiar school, friends and neighborhood.
How comfortable with the candidates is the child now?
Consider the child’s age and that of the guardian-candidates. Grandparents may have the time, but they may not have the energy to keep up with a toddler or teenager. An older guardian may become ill and/or even die before the child is grown. A younger guardian, especially an adult sibling, may be concentrating on finishing college or starting a career. If the child is older and more mature, he/she should have some input into this decision.
How prepared emotionally are the candidates to take on this added responsibility? Someone who is single may resent having to care for someone else’s children. Someone with a houseful of their own children may not want more around, or they may welcome the addition.
Ask the top candidates if they would be willing to serve, and name at least one alternate in case the first choice becomes unable to serve.
Raising the child should not be a financial burden for the guardian, and a candidate’s lack of finances should not be the deciding factor. The parent will need to provide enough money (from assets and/or life insurance) to provide for the child. Some parents also earmark funds to help the guardian buy a larger car or add onto their existing home, if needed.
Naming someone else to handle this money can be a good idea. Having the same person raise the child andhandle the money can make things simpler because the guardian would not have to ask someone else for money, but the best person to raise the child may not be the best person to handle the money; and it may be tempting for them to use this money for their own purposes.
Naming a guardian can be a difficult decision for many parents. Keep in mind that this person will probably not raise the child because odds are that at least one parent will survive until the child is grown. By naming a guardian, however, the parent is being responsible and planning ahead for an unlikely, yet possible, situation. Finally, all parents must realize that no one else will be the perfect parent for their child, so typically this means making compromises in some areas. Finally, parents should remember that they can change their mind; in fact, parents should review and change the guardian as their child grows and if the guardian’s situation changes.
If you are interested in ensuring that your family is cared for after you have passed away, please call our office at 415-625-0773 to schedule your free estate planning consultation with San Francisco’s premiere estate planning attorney, Matthew J. Tuller.