Parents Should Designate Guardian For Minor Children

Despite the fact that we are “Elder Law Attorneys,” we are also traditional estate planners helping adults of all ages make plans for the future. Naturally, our clients include parents of young children who want to make sure their children are well cared for if anything happens to them, whether through death or incapacity. If you have youngsters, do not procrastinate when it comes to creating these important plans. 

Here are the basic components that should be included in your plan:

Designate a Guardian 

Designating a guardian for your minor child is essential. This protects your child and will relieve you of worrying about all the "what ifs" should something happen to you. Designating a guardian can even benefit your extended family: Numerous legal battles have ensued when grandparents from different sides of the family or other family members vie for custody of an orphaned youngster.

There is only one way to name a guardian for your minor child: through a Last Will and Testament. When the Will is admitted to probate, the court will customarily honor the parents’ wishes, unless the designated guardian is found to be grossly unfit.

Issues to Consider In Selecting a Guardian 

What should you consider when selecting a guardian? It may be an easy choice if your sister lives around the corner from you, has a child your child's age, adores your child, and everyone gets on famously. But the choice is often not so simple. Here are a few of the issues to consider when deciding on a guardian for your child: 

• Grandparents often come to mind as the first choice. But take into consideration their temperament, their health, their age. Are they young enough to properly care for active toddlers? Will they be too advanced in age when your child is a teen? And if there are two sets of grandparents, which one is most likely the best choice?

• What are the prospective guardian’s moral values, religious values, lifestyle? Are they in line with yours? Is he/she going to point your child on the path you have in mind?  

• Does the person have a job that keeps them away from home much of the time?

• Does the prospective guardian have children of his/her own? Will that be a plus or a negative? Have you observed how the person is raising his/her own children? 

• Where does the person reside? If you pass away when your child is an infant, it won’t matter much where the guardian resides. But older children tend to do better if they can remain in their community, attend the same school, and maintain existing friendships.  

• Don't lock yourself into considering only married couples. A single individual who loves your children and has the capacity to care for your them may be the best choice. If you are considering a married couple, does their marriage appear stable? If the couple splits up, who will get your child?  

• Have you talked to the prospective guardian to make sure the person is willing to serve? However remote the possibility that the person will ever have to step up to the plate, this is not a responsibility to be taken lightly. 

• Even if you are divorced, you will want to designate a guardian in the event that your ex-spouse can’t or won’t serve. You should also appoint a back-up guardian, in case your first choice cannot serve.

Designate a Guardian of the Child’s Property 

In addition to designating a personal guardian for your child, you will also need to name a Guardian of The Child’s Property. This is the person(s)  who will manage your child’s money. The child’s personal guardian could serve in this capacity, but you may prefer to assign the jobs to different individuals.

Also, consider setting up a trust for your child. You can include a provision directing your chosen trustee to release the moneys in a staggered fashion. Without a trust, your child will receive whatever you leave him as a lump sum when he/she attains the age of 18. At that age, your child may not be sufficiently mature to handle a large sum of money.   

Create a Designation of Health Care Surrogate 

You should execute a Designation of Health Care Surrogate For a Minor Child, particularly if you tend to be away for extended periods on business or vacation, or if you entrust your child to someone else for extended periods. This allows you to designate one or more persons to make your child’s health care decisions if you cannot be contacted.