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Choosing a Guardian for Your Children

by Kimberly Sanders Vanderbrook

Death happens. Most of us don’t want to think about it, but we really should. Consider this: What would happen to your kids if you and your spouse went out to dinner and never returned? If you have not named a guardian for your children in your will, the state will determine what happens next.

What’s that? You haven’t appointed a guardian? Don’t feel bad. I’m an attorney, paid to advise and help others draft wills and guardianship documents. I have seen first hand how important appointing a guardian is, but my husband and I still haven’t done it. Why? Like most of you, aside from the very human discomfort of contemplating the uncontemplatable, we just can’t come up with the perfect guardian for our precious children.

Well, it’s time for all of us to accept that no one else could possibly love and raise our children as well as we can. No one else will do the silly dance the way we do, make their peanut butter sandwiches with the crusts cut just right or know the exact voice to use when impersonating one of the Groovy Girls. And that’s okay. Don’t let the fact that you are the very best parent for your children paralyze you. Get over it and get started!

Designate a First Responder

So what does happen if your children are with a babysitter and you don’t return? If your kids were with someone without legal authority to have custody of them, the police would be forced to call Child Protective Services. The children might be placed in foster care until someone with clear legal authority comes forward or the court makes a determination of who should have the children. This is why it is very important that you designate a “first responder” in writing.

This person, who does not have to be the eventual permanent guardian of the children, should be someone who lives close by, who knows your children well and knows how to contact the person you have chosen to be the guardian. Don’t forget to leave the name and phone number of the first responder with the babysitter every time you go out.

Choose a Long-Term Guardian

Picking someone to raise your kids in the event of your untimely—um, well, you know—is overwhelming. But we have to do it. The best way to get started choosing a guardian is to sit down with your spouse (and a healthy glass of chardonnay) and make a list of all possible guardian candidates. Don’t limit yourself to family; consider close friends, as well. This decision requires a lot of soul searching and is really a statement of what your core values are as a parent. Ask yourself what qualities you would like your kids to have as adults and who in your life models these qualities.

The following should also be considered:
Parenting style. Do they parent in a very strict or lenient way? What type of parenting style is your child used to?

Religious beliefs and practice. Are you active in your church? Would the guardian be willing to continue to support the children in your religion or church?

Responsibility. Can the guardian handle the added responsibility of your children? Will they make responsible choices?
Geographic location. Where do they live? Is it close to other family members? Will they facilitate continued contact with both families?
Their family. How many children do they have? What are their ages? Do your children get along with their kids?

Marital stability. What’s their marriage like? Do you think that they will stay married? And if they are single, what if they decide to marry? Even if you decide on a couple to be the guardians, name only one person as guardian to avoid placing your child in a custody battle should they divorce.

Age/health. It’s natural for us to want to choose our parents as guardians. It may not be the best choice, however, depending on how old they are and their health. It takes a lot of energy to raise kids on their long journey to adulthood!

Once you have narrowed the list down, go to each prospective guardian and ask if they would be willing to be a guardian to your kids if they are selected. Some may not want to take on the responsibility. It’s important to have an open discussion with the potential guardians and explore all of the above issues with them. This may help you make a final choice.

Be warned. The politics of selecting a guardian are tricky. There are so many toes to step on—your mother, his mother, siblings. Keep the best interest of the children at heart, and don’t let the egos or hurt feelings of others get in the way of your decision.

Once you’ve decided and the guardian has accepted, celebrate! And then make it legal. Go to a lawyer and get it in writing in a notarized format or in a last will and testament. Both parents should include the guardianship provision in their wills.

Share your philosophy of child raising with the guardian. Some people call this an “ethical will,” although most courts will not enforce its provisions. Write down the things you consider the most important in the event that the guardian must raise your child. Include special family memories, religious and/or spiritual beliefs, educational preferences, traditions and family history. This will give you peace of mind and give guidance to the guardian when you cannot.

Protect Your Children Financially

If you don’t have a will, you need to make one, regardless of how few assets you may have. Some people think that it is more important to have a will as you get older. Actually, once you have children it is your responsibility to have a will, even if you have very little money.

Take Stock of Your Finances

If you do not feel that you will leave enough assets to pay for the children’s upbringing and education, consider life insurance. One of the most common concerns of prospective guardians is how they will handle the additional financial burden of raising more children. Life insurance can greatly alleviate these concerns.

What if you have chosen a guardian who will do a great job raising your children, but who is not so good with money? You can appoint a separate guardian or trustee to manage the children’s money. The money can be placed in trust for the children and dispersed at the trustee’s discretion for the education and general welfare of the children. You can set the trust up to terminate when the children reach an age where they are mature enough to handle the money on their own.

Revisit Your Choice

Once every few years, you should review your decision and make adjustments accordingly. This review is especially important after major changes in your life, such as the birth of more children, or in the life of the selected guardian, such as illness or divorce. Usually, for a fraction of the cost of a new will you can change the guardianship provision. Remember, this is not set in stone. You can always change the guardian. What’s important is that you make a decision now and have a plan, so the state does not decide for you.
So what are you waiting for?