If you have minor children, your estate plan should address who you will nominate as guardians for your children in the event you are no longer to care for them. If you pass away or are incapacitated, you want to make sure your plan addresses who will be in charge of your kids. In your estate plan, you do so by "nominating" a guardian.
So where do you nominate guardians for your kids? Generally speaking, the nomination of guardian(s) is found in your last will and testament. Also, you can also nominate guardians in a separate, stand alone document. Remember to select "primary" and "secondary" guardians for your children in case your first choices are unable to serve.
Just because you name someone doesn't mean they are automatically legal guardian over your children. Many people are surprised to learn that a nomination is simply just that - a nomination. The person you've chosen to act as guardian still needs to be appointed by the court. This is called a "Petition for Guardianship." Once the court approves your nomination, they are officially the legal guardian. The only way your nominee for guardian can become legal guardian is to be appointed by a court. A letter you write and give to them doesn't really give them any legal authority.
Therefore, armed with your nomination, your nominee must "petition" the court for guardianship. Then the judge will look at any specific instructions you may have put in your nomination, and may also make rulings regarding your wishes. The judge may not approve everything you request, but consider your nomination the place where you can at least make your general wishes and desires known. The court will consider your nomination but will also consider other factors affecting the welfare of your child. The latter is the overriding concern with strong consideration given to your nominations. Your children may also have a say if they are old enough.
Once appointed by a court, the guardian must generally regularly report to the court regularly about how the guardianship is going, provide an accounting, etc. If there are concerns, the court basically retains jurisdiction over the guardianship until the minor reaches age of majority. If a guardian is not doing a good job, they can be taken to court and questioned. Therefore, nominating a guardian or guardians for your minor children is a very important first step. Just make sure your nominees understand they must petition the court to officially be appointed guardian.
Naming guardians for your children can be difficult. Here are some thoughts on how to pick guardians for your kids. School has started. It’s important to provide children with a strong education. However, have you taken the time to legally protect your kids?
Nearly 70% of parents have NOT named Guardians for their minor children. If you have minor children, it is very important to select guardians for those children in the event you can no longer be there for them – either by death or incapacity of some sort. Naming Guardians for your children is only part of estate planning. Other important components include Living Trusts, Wills, Powers of Attorney, Health Care Directives, etc. Some people find this process uncomfortable, but this is the time to get empowered and take action to protect your kids!
What if you can no longer care for your children due to death or incapacity? If you can’t take care of your minor children, the court must appoint legal guardians for those children. Anyone who wants the job can petition the court. Your kids can easily end up with people who probably have no business raising your kids or don’t share your same values. However, by legally naming guardians for your children beforehand, the court will appoint the people that you’ve chosen. Wouldn’t you rather choose who gets to raise your kids? Wouldn’t you rather lay down the rules and guidelines for your children’s guardians?
How to choose a guardian for your kids?
1) First, don’t worry about hurting anyone’s feelings! Some people don’t name guardians because they are afraid of hurting someone’s feelings. For example, if they don’t name a certain family member, they fear that family member will be upset. These are your kids we are talking about! Hurting someone’s feelings should be of secondary concern. Second, that family member usually won’t know they haven’t been named unless you choose to tell them.
2) Now list all the people you can imagine raising your kids. Of course, no one will be as good as you! By the same token, generally speaking NO ONE is perfect. Therefore, don’t let that fact keep you from creating this important legal document! Some parents get stuck on this part, and as a result, end up doing nothing! So go ahead and list about 3 to 5 people or couples. If you can’t think of anyone, then work backwards – try making a list of people who should NEVER raise your children….then start listing people who are better than those people you’ve just listed. Remember, you don’t want to leave this decision to a court.
3) At this point, start listing the most important things to you when it comes to raising your kids – is it the location where they are raised, the age of those raising your kids, their parenting style, their religion, marital status, their relationship to your kids, etc? List about 3 issues/values that are most important to you.
4) Take your first list of people, and your second list, and now match them up. You will start to see a natural hierarchy. There should always be at least three guardians listed. Make sure to discuss your nominations with your guardians. You want to make sure they are willing to serve. Remind them they are not obligated to serve in the event they cannot serve or don’t wish to serve because circumstances change. If you wish, we can also send them a short letter explaining what it means to be named guardian.
Some common mistakes people make when naming guardians for their children.
1) Naming couples to serve as guardians. Ask yourself WHICH person from the couple you REALLY want raising your kids. Divorce rates are still high in this country, and what if one person in the couple passes away? It’s usually better to name the one person you really want rather than naming the couple.
2) Parents don’t name enough alternate guardians. The people you choose many not be able to serve for one reason or another. You need backups!
3) Parents will consider the financial resources of their guardians. Your guardians are not responsible for providing financially for your kids. They should be chosen on their ability to take the best care of your kids. Providing for your kids via a living trust and/or life insurance, etc., is your responsibility. That is part of a larger estate plan, and you may wish to consider it. If you are not ready to put together a complete estate plan, that is fine. At least you’ve taken an important first step by naming guardians for your kids.
4) The parents don’t consider the financial provisions of taking care of their kids (i.e., how their assets are going to transfer to their children). Are they getting everything at age 18? What about protecting your kids from divorces or creditors? Who will manage the money for them? Again, this is part of the larger estate planning process. We can certainly discuss the options available, but at least you can get started by naming guardians for your kids.
5) People don’t exclude people they know they DON’T want caring for your kids. There may be people in your life that you definitely DON’T want raising your kids. You can indeed “anti-nominate” people as well. You want to make your wishes made clear so your children have the best care possible. Choosing guardians for your children can be a tough process. However, doing nothing at all will more than likely be tougher on your kids!