If you’re a parent of a minor child, one of the most important decisions you’ll make while putting together your estate plan is who to nominate as your child’s guardian—that is, the person who would take care of your child if you and your co-parent (if any) were to die or become incapacitated while your child is still a minor. If the thought seems unbearable, consider what might happen if you were to pass away without naming a guardian: Someone would have to petition the court to be appointed your child’s official guardian, and, after a proceeding, the court would pick a family member to raise your child. If more than one family member were to step forward, the guardianship proceeding could cause conflict between relatives who each insist that they’re the child’s best option. And because you’re not around to express your preference, your child may end up with a family member who, despite the person’s good intentions, you would NOT want raising your child. In the meantime, your child may be placed with Child Protective Services until a guardian is appointed.
Fortunately, while picking a guardian for your child can be a tough decision, formalizing your choice is relatively easy. This article is designed to do two things: (1) help you decide WHO to name as your child’s guardian by helping you ask the right questions, and (2) tell you HOW to name your child’s guardian once you’ve decided on someone.
Questions to Consider
Remember, few parents find a potential guardian who meets all their criteria. Typically, the choice involves a process of elimination and/or deciding which qualities are most important. You should also choose a backup in case your top choice isn’t available or able to take on the responsibility. While considering your choices, you might find it helpful to ask the following questions:
- Do I have a relative or close friend who would be willing to take on the role? Have I actually asked this person if he/she is willing? The single most important question to ask when picking your child’s guardian is whether that person is actually willing and able to take on that role. Gaining extra family members and parenting responsibilities is a big deal, and it’s not the type of thing you want to surprise someone with. Before naming someone as guardian, talk to him/her about it.
- What do I know about this person’s parenting style and skills? Would he/she provide the love and attention my child needs? If the potential guardian is already a parent, consider what you know about his/her parenting style, including his/her views on child discipline, education, and financial responsibility. Does it align with yours? If the person isn’t a parent, consider what you know about how he/she was raised; it’s not a perfect predictor, but it will greatly influence how the person views his/her role as a parent.
- Am I comfortable with this person’s lifestyle and values? What do you know about the potential guardian’s religious, moral, and political beliefs? Do they align with yours? If you don’t know the person’s religious, moral, and political beliefs, you’ll need to ask. It’s impossible to find someone whose personal beliefs match yours 100%, but a 75% match is better than a 25% match.
- What is this person’s family situation? Would I still want this person to raise my child if their family situation changed? Is the potential guardian married? If so, how stable is the marriage? Would you still want the person to be your child’s guardian if he/she got divorced? If single, is there a significant other in the picture? Would you still want the person to be your child’s guardian if he/she married that significant other? Does the person have children (and/or is he/she likely to have them)? If yes, can he/she handle more? If no, would he/she be prepared for a ready-made family? If you have more than one child, would the guardian be able to keep them together?
- Does my child already have a good relationship with the person?
- Where does this person live? Would my child have to relocate? If the potential guardian doesn’t live nearby, don’t assume he/she would pick up and move into your house or relocate to your city. Most likely, the guardian would either absorb your children into his/her current house or, if necessary, move to a larger house near his/her current home. How would you feel about your children being raised where the potential guardian lives right now?
- Can the person handle any medical or behavioral issues my child may have?
Okay, I’ve picked someone (and a backup!). Now HOW do I name my child’s guardian?
Deciding on your child’s guardian (and talking to the person ahead of time!) is a great first step, but you’re not done yet. Verbal communication isn’t enough, especially if you plan to appoint a friend as your child’s guardian, since courts will almost always choose a family member without legally valid instructions to the contrary.
The best way to make sure your instructions are followed is to appoint your child’s guardian in a valid will. Technically, in North Carolina, you can only “recommend” a guardian for your minor child. However, if there’s no dispute, your recommendation will be followed. And if there is a dispute, the Clerk of Superior Court (who has jurisdiction over appointing guardians in North Carolina) will take the nomination in your will as a “strong guide” in the absence of a surviving parent. Alternatively, if you don’t think any family members will dispute your choice, you can nominate your child’s guardian in a separate letter, which can be changed more easily and cheaply if you change your mind. Ideally, couples should agree on the choice of guardian, and each parent’s will (or guardianship letter) should appoint the same person.
If you have specific instructions you’d like to give the person(s) you nominate, you should address these in a separate letter rather than trying to work them into your will. Circumstances change, and it’s best to be able to update any day-to-day instructions you might have without undertaking the formalities of changing your will. And try not to micromanage—remember, raising children is full of surprises and requires constant adaption. Ultimately, you need to choose a person you trust to do the best thing for your child.
You should also make sure to have life insurance in place, especially if you don’t have enough in savings to support your child up to adulthood if your income suddenly stopped. (Consult a financial advisor on how much and what kind of life insurance to buy.) Life insurance beneficiary designations can then be coordinated with the rest of your estate plan (such as by adding trust provisions to a will or by creating a separate living trust) to make sure your children would be provided for financially if you were to pass away.
If you have any questions, please post a comment below or send me a message here.