Clients with minor children find that one of the hardest decisions in the estate planning process is how to choose a person or family to care for those children in the unfortunate event of the parents' incapacity or death. Here are some steps that might help in this decision making process.
The easiest place to start is to make a list of anyone and everyone who could be a good guardian for your minor children. Ask yourself, "Would this person/family provide a better home for our children than the State?" This is a good point of reference, since the alternative to naming your own guardian is to have the children placed under State supervision (such as foster care) until a guardian can be named (which may not be someone that you'd prefer). This list could contain dozen of names, but ideally should have at least 4 or 5 people, couples, or families that you trust with the care of your children. Make sure to think beyond immediate family, such as brothers and sisters. Many clients choose cousins, aunts and uncles, grandparents, and friends as guardians. Try not to let money matters affect your list, unless the potential guardian lacks basic money management skills, since things such as life insurance can ensure your children's material well being.
Make a second list of those things that are important to you. Do you want your child to be raised with a certain religious belief? Is it important that your guardian be of a certain age, or that they have a certain threshold for patience and maturity? What is important to you in looking to your guardian's child-rearing philosophy? Is marital or family status of a guardian important? Your guardian will be a role model for your children, so it's important that you understand what that person to be. You may be able to exert some influence on your guardian's behavior in raising your children (they might be willing to go to church with your child, if they don't already, they might change some social and moral habits to accommodate your parenting wishes, etc.). However, there are some characteristics that will not change; a person's integrity and financial management skills are unlikely to change by becoming a guardian.
Congratulations! Once you have completed these first two steps, you have a list of potential people that you support raising your children, and you have a list of factors that are important to you in how you want your children to be raised and what you look for in a guardian. Looking at these two lists, you should be able to narrow down the list of candidates to make the decision much easier. While this is an easy step for many families, this may be difficult if there is a disagreement between the parents. Mom may want her sister to be the guardian, while Dad may want his cousin's family to care for the children. Consensus is important! Use this as an opportunity to have a much deeper conversation about the people and values, and try to understand each other's position in order to find a solution that you both feel good about. Remember - it is important to have more than one potential guardian on your list, as successor guardians should be named in your estate planning documents.
While it's not a legal obligation to clear this decision with the guardian of your choice, it's a good idea to have a conversation with them about it. This can be an opportunity to really develop deeper relationships. Many times, we see that those family members or friends asked to be guardians will want to take a more active role in the life of the child, as a god-parent would in some religions. Ask the guardian if they are willing to support the care of your children, and start discussing what that family structure would look like. This is a good place to discuss the list of values that are important to you (the list that you wrote in Step 2, above). Focus on what you want for the growth and development or your children as you communicate this with your guardian.
The worst mistake you can make is to go through this process and to avoid the final step of drafting the proper language in your estate plan. Make sure to meet with your attorney to ensure that the guardian is nominated in your trust or will. Try to avoid off-the-shelf guardianship forms, as they likely don't address state-specific benefits. For example, in Nevada a person can appoint a temporary guardian to take care of the kids while the permanent guardianship is settled - which means that your minor children may avoid being placed in the custody of the state for even a minute.
There are other times when certain legal forms should be considered for minor children. For example, if your minor child is travelling within the U.S. under the care of someone else, or if your minor child is travelling outside the U.S. with only one parent, you can have your attorney draft the proper Certification of Consent for Minor's Travel forms to make this process easier.
At Anderson, Dorn, & Rader, Ltd., we regularly help clients handle these issues where there are minor children involved. If you reside in Nevada or California, please feel free to reach out to us to discuss these issues by calling our office at (775) 823-9455.
