You love your children more than anything. You’d stop at nothing to protect them.
But what happens if you’re gone? Who’s going to make sure that they’re safe? That they feel loved? That they’re raised the way you want?
If you haven't named a guardian, then a judge who doesn't know the first thing about you or your family is going to choose for you. You don't want that.
So, in this guide, I’m going to show you how to choose the very best guardian(s) for your children.
This is the exact process I use to help my clients ensure, if something were to happen to them, that their children would be raised by the person best suited to provide a loving home and impart my clients’ values to their children.
Although I practice law in California, you can use this process no matter where you live.
Let’s dive right in:
What exactly is guardianship?
Guardianship is the legal arrangement whereby a non-parent takes custody of and raises another person’s child. The most common situations where guardianship comes up is when 1) both parents have passed away or 2) another issue prevents a living parent from taking care of their child (e.g., substance abuse, jail, etc.).
In my practice—estate planning—my clients are concerned about the first situation. In other words, my clients are getting their affairs in order and want to ensure that if they prematurely pass away, their children are protected.
What happens without a guardianship nomination in place?
Before I get to the process for choosing and nominating a guardian, it’s important to understand what will happen if you pass away without nominating a guardian. While exact details vary from jurisdiction to jurisdiction, the big picture is the same.
Someone needs to start the process. Typically, this is done by filing a petition for guardianship with the court. Who will that be? It can be anyone—a relative, a close family friend, or even a social worker. In most cases, the person who starts the process will propose that he or she becomes the guardian.
A judge decides who to appoint as guardian. If only one person comes forward, then this step is relatively straightforward. The judge will just need enough information to ensure that the proposed guardian will provide a safe environment for the children.
But what if more than one person wants to be named guardian? This is where things can get ugly. Guardianship contests run deep with emotion and conflict. Everyone involved believes that they’ll provide the best home for the kids.
How will the judge decide? Unfortunately, the person who looks best on paper is likely to win.
Take a moment to reflect
Think about your friends and family. Who’s the person most likely to step up and get the ball rolling? Remember, that person will likely nominate themselves as guardian.
Is that who you’d want? Is there anyone else, maybe from the other side of the family, that would contest the nomination?
Who do you think the judge would pick?
Is that who you’d pick?
I recently counseled clients—a married couple—who felt that both the wife’s sister and husband’s brother would likely attempt to gain custody of their infant daughter. My clients, however, preferred that friends from church raise their child. In that situation, the preferred guardians (i.e., the friends from church) would be unlikely to prevail (if they even got involved in the first place). The unfortunate truth is that a judge would likely pick a family member over friends.
Okay, now that you’ve seen what happens if there isn’t a guardianship nomination in place, let’s move on to choosing the best guardian.
How to choose the best guardian for your children
I counsel my clients to use a values-based process for choosing guardians for their children. What’s that mean? Simply put, my clients choose guardians based on who best shares their values.
Think of it this way. At its core, parenting is about imparting values on our children.
What values are most important to you? Religion, spirituality, work ethic, integrity, academics, the arts, athletics, nature, or something else? I bet you spend a lot of time exemplifying those values to your kids. Consciously or subconsciously, you hope that your children will adopt those values for themselves.
You want them to become adults who value the things that you value. It's perfectly normal.
Now, take yourself out of the picture. Who’s going to model these values? If no one is modeling the values you care about, then it’s unlikely that your kids will eventually adopt them. How could they?
That’s why I recommend choosing guardians based on shared values. Everyone is human—you can’t expect a guardian to model a value that they don’t personally hold.
The example I always use is religion. If religion is most important to you, then you really must nominate a guardian who attends service regularly. If you don't, then maybe that person starts attending church for a few weeks or months out of respect for your wishes. (And that's assuming you've communicated that wish to them.)
But, eventually, they will revert to what’s normal for them. Which means that your kids will no longer go to church regularly.
Pick based on who's best for the next 2-3 years
Often during planning sessions with my clients, they'll start going back and forth about whether the grandparents will be capable guardians once the kids, who are barely toddlers, become teenagers. When this happens, I always steer them back to a 2-3 year time frame.
There are just too many variables in play try and decide who's the best guardian for 10+ years into the future. Instead, the best we can do is to make the right choice for the next few years, based on your kids' current needs and the potential guardian's current attributes.
Then, you should continuously review your decision and, if necessary, choose new guardians. I tell my clients to revisit their estate plans about every three years.
Need help deciding?
Other characteristics every guardian needs
Values are the most important criteria for choosing a guardian, but they’re not the only ones. After all, this person will raise your children until they turn 18.
Here are some of the other qualities your child’s must guardian have:
More Guardianship Issues to Consider
Here are some issues you may want to consider before making a final choice.
Splitting duties between a financial guardian and custodial guardian
Up to this point, I’ve simply referred to the job of guardian. But, it’s actually two distinct roles: custodial guardian and financial guardian (or, in legal parlance, guardian of the person and guardian of the estate).
The custodial guardian is responsible for physically caring for your child. Here are some of the responsibilities:
The financial guardian, by contrast, is responsible for maintaining and overseeing the money that’s been left for your child. The duties include:
You can either nominate a single person to hold both positions, or you can nominate one person to be the custodial guardian and another to be the financial guardian.
What’s the benefit? Splitting up the duties between two people provides oversight. The custodial guardian will keep an eye on the financial guardian and the financial guardian will keep an eye on the custodial guardian.
I recommend that my clients consider splitting the duties when 1) the proposed guardian is a loving caretaker but is not financially sophisticated or mature, 2) there is a grandparent or other family member that my clients would like to keep closely involved int their children’s lives but that person isn’t capable of caring for a child full time, or 3) there’s a close family member or friend with substantial financial sophistication (accountant, financial adviser, etc.).
Using a confidential exclusion
Is there somebody in your life that under no circumstances you would want to raise your kids? The purpose of a confidential exclusion is to make sure that never happens.
In this document, you name that person and explain—in detail—why you believe that person isn’t fit to raise your children. Once it’s ready, you give it a trusted friend or your lawyer. You can even put it in a sealed envelope for extra security.
In a perfect world, this document never sees the light of day. But if you pass away and the person you name tries to get custody of your kids, your trusted friend or attorney provides that person with the document and asks them to withdraw. Hopefully, that’s enough. If the person persists, then your trusted friend or lawyer files the document with the court. Given what you explained in the document, the judge will be extremely skeptical of the person named.
The reason the document is kept confidential is to avoid needless embarrassment for the person named. You might like them just fine as a friend or family member, but nevertheless not want them to raise your kids.
Nominating temporary guardians
The role of temporary guardian is designed to ensure that your children are never placed into the care of protective services.
Let me give you the scenario:
You and your spouse are out to dinner. The kids are at home with a 15-year-old babysitter. On the way home, you get into a bad car accident. You’re both taken to the hospital. Your phones are locked with pass codes and you don’t have your home phone number anywhere on your body. None of the first responders even know you have kids waiting for you at home.
At 9:45 p.m., the babysitter tries calling you a few times, but the hospital staff has already placed both of your phones in bags with the rest of your stuff. No one hears them vibrate.
It’s 10:30 p.m. now. What’s the babysitter do? Does she call the police? Her parents? If it’s the police, they’re not going to let a 15-year-old just stick around with a couple little kids.
And here comes Child Protective Services.
I’m not saying this is likely to happen. I’m only saying that it could happen—and it’s not at all far-fetched.
Just as we have insurance for all sorts of things that are unlikely to happen, my recommendation is that you nominate temporary guardians to eliminate the risk of your child being taken into the custody of protective services.
If no long term guardian is available to come to your house immediately, you're going to instruct the babysitter to begin calling the short-term guardians.
The best temporary guardians are people that 1) live within 15 or 20 minutes of you and 2) are familiar with your kids. You should be comfortable with them staying with your kids for 24-36 hours until a permanent guardian can arrive and take over.
8 Mistakes to Avoid
#1: Choosing Based on Money
My view, as explained above, is that your primary criteria for choosing a guardian should be shared values. So, it follows that choosing based on money is a mistake. Here’s why:
It’s your responsibility to provide for your children. That holds even if you’ve passed away. If you highly value expensive things—private schools, college education, extracurricular activities—then it’s your responsibility to make sure that the guardian has access to the financial resources necessary to pay for those things. If your current assets aren't enough to pay for it all, then you need to obtain life insurance to cover the shortfall.
Most guardians will end up going out a pocket somewhat to take care of your child. But it’s not reasonable or proper to lay the whole bill at their feet.
Moreover, the law doesn’t require them to spend their own money on your kids. So, even if you're very clear about your wishes, the guardian won't have to follow them if there isn't money available.
#2: Worrying about hurt feelings
This comes up with families where there a many potential candidates—aunts, uncles, etc. It's understandable; you don’t want to hurt your sister’s feelings by choosing your best friend instead of her.
But you cannot even start down this road.
Remember, we’re talking about a scenario where you and your spouse are gone. The focus must be 100% on your kids, and what’s best for them.
If you’re worried about hurt feelings, the solution is to simply not tell the person your concerned about offending. Or, list them as an alternate (see below).
In my practice, I write a letter on behalf of my clients that tells everyone involved in their estate plan (successor trustees, executors, financial agents, healthcare agents, guardians, etc.) that they’ve been chosen to potentially serve in one of those roles. It communicates that the recipient is involved in my clients' estate plan. It's very general--nothing concrete. From there, I counsel my clients to share are much, or as little, as they are comfortable doing.
#3: Not naming alternates
My recommendation is that you name at least two or three back-ups. Why? There’s no guarantee that your first choice will be willing or able to serve as guardian for your children if the time comes.
If that’s the case and you don’t have an alternate named, then your family will need to go to court and a judge will have to decide.
The whole point of naming a guardian in advance is to avoid that!
So, name a few backups.
#4: Relying on informal arrangements
What do I mean by informal? Here, I’m talking about situations where you are relying on a verbal agreement or tacit understanding. A common example is where you name godparents for your children.
Without a written nomination, any person claiming (rightly or wrongly) that you would have wanted them to raise your kids is going to have to rely on hearsay (i.e., your statement to them). A judge simply won’t put much value on that hearsay evidence, particularly if there's is another someone else involved (i.e., there's a guardianship dispute).If you feel strongly that a particular person should be your children’s guardian, you must put it in writing.
#5: Unintentionally naming co-guardians
This mistake is best illustrated by an example.
Tara decide that Tara’s best friend Monica would make the best guardian for their kids. Monica is married to Mike. So, Tara nominates Monica and Mike as their first-choice guardians and grandparents as the backups.
Tara passes away. So, the kids go with Monica and Mike. That was the plan. So far, so good.
But what happens if Monica dies? Monica and Mike were both named as guardians. So, legally Mike is still the guardian.
Is that what Tara would have wanted? Or, if it was between Mike alone and the grandparents, would she have preferred the grandparents?
You’ve got to be careful when nominating co-guardians. If you really just want one-half of a couple, then you need to say so explicitly. Here’s an example of how to do so.
First Choice: Sandra and Chris, but only if they remain married
Second Choice: Sandra
Third Choice: Dianne
#6: Not reviewing every 2 or 3 years
Nothing in life is constant. Your children grow and mature. The best guardian for a couple of toddlers isn’t necessarily the best choice when they’ve grown to be teenagers. Likewise, your relationships change and people come and go. Your best friend when your kids are little might not be your best friend when they’re in middle school.
Make sure that you are reviewing and, if necessary, updating your choice at least every few years.
#7: Ignoring what your kids want
This one concerns older kids. The preferences of pre-teens and teens should definitely be a consideration. I’m not saying they should get to choose or even have a veto over your choice. But it doesn’t make sense to name Uncle Adam as the guardian if your kids hate going over to Uncle Adam’s house.
#8: Not leaving instructions
Even if you've chosen the very best guardian, it's important to leave instructions. You don't want your guardian guessing what your preferences would be.
I instruct my clients to complete care instructions that include things like values, important relationships, religion and spirituality, financial priorities, educational preferences, community activities, and parenting resources.
Click the button below to download a copy of the fillable care instructions I provide to my clients.
If you haven't nominated guardians for your children, then hopefully I've inspired you to do so.
You basically have two options: DIY or hire an attorney.
If you opt for DIY, the best thing to do is google "guardianship nomination ______________" where the blank is your state or jurisdiction. What you want to look for is whether there are any requirement as to notarization or witnesses. Every state is different so make sure that you're looking at the right resource.
1) My name is _______________________.
2) I am currently [married/unmarried/separated/divorced]. My [husband/wife/spouse/ex] is _________________.
3) I have __________ children:
[list names and dates of birth].
4) If I am deceased, incapacitated, or otherwise unavailable to raise my children and a guardian of the person and/or estate is needed, I hereby nominate the following individuals in order of preference:
5) Any guardian appointed under this nomination may serve without a bond. (Optional)
Executed on _________________________ at ___[city]______________, __[state]__.
DISCLAIMER: The sample language above is not intended to be legal advice. You must do your research before proceeding with the DIY option. Make sure you ascertain whether notarization or witnesses are needed.
If you decide to hire an attorney, you should look for an estate planning attorney (aka wills and trusts, trusts and estates). This is a standard document that requires very little customization. As a stand-alone item, you shouldn't pay more than $200, and that's really pushing it.
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