NASE Blogs

Choosing a Guardian: Who will take care of our minor children?

Mar 23, 2011

The most difficult estate planning decisions involve the simultaneous death of both parents, and the most difficult of those decisions is who to choose as guardian of your minor children. It is difficult to imagine that anyone would raise your children with as much love and care as you would. For that reason, it may seem that no one will be a satisfactory choice. Nevertheless, a well-thought-out choice is better than no choice at all. Remember, should the need for a guardian arise, the situation is already less than ideal and difficult circumstances already exit. By careful thought and planning now you can try to assure the best possible future for your children. Factors that may be important when choosing guardians include: The number of children you have, their ages and special needs, if any.  With respect to prospective guardians: Their ages, blood relationships, nature of existing relationships with your children, size of your family and your prospective guardians’ family, their lifestyle, location, ability to provide, stability, health, education, religion, and for some, issues of social status and even politics.

An important component in choosing a guardian is the willingness of the individual(s) you select to accept the responsibilities of guardianship. Occasionally those who you would prefer will decline to serve. Before finalizing any decision about guardianship, you should meet with your desired guardians and discuss possible circumstances in depth. Although some would prefer not to take the responsibility of raising someone else’s minor children, at the same time, most of us also recognize that circumstances can arise necessitating sacrifices on behalf of those we care about, particularly when there are minor children involved.

The first option to consider might be your or your spouse’s brothers or sisters. Often they are about the right ages and already have a strong interest in the well-being of your children. A happily married sibling may be preferable to a single one because marriage usually provides appropriate stability and circumstances for raising minor children.

If there are no satisfactory siblings, consider married cousins, nieces or nephews who are about your age and with whom you are relatively well acquainted. If you cannot find suitable guardians among family, consider married friends you are close to.  Close friends, assuming that they are willing to serve, are likely to be of appropriate age and to have a lifestyle suitable for providing a stable environment for your children.

If there are no family members in your approximate age range and no close friends who are satisfactory, consider your parents, especially if either of you have parents who were relatively young when you were born and who are still in good health. Most authorities believe that your children’s grandparents should not be a first choice because there is usually a substantial difference in ages between your children and their grandparents, however, it is not so much age as attitudes and environment that may be substantially different in an older generation. These are determinations that you must make based upon your observations and your intuition about those involved.  As mentioned before, if your children are in need of guardians, circumstances are already less than optimal and you may not have a perfect choice upon whom you can rely. You can only try to do your best with these decisions.

Finally, when you have chosen guardians, and have met with them to discuss the responsibilities of guardianship, and they have agreed to accept the responsibility should the need arise, you should determine who your second choice would be. This is especially true if you have selected as your first choice your parents or others who are somewhat older. Your second choice should be named as alternates in the event that your first choice cannot serve. Be sure to discuss the responsibilities of guardianship with these alternate guardians as well.  Hopefully they will not be upset at not being your first choice, and will agree to love and care for your children should the need arise.

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