It’s the question that no parent (even me!) really wants to consider:
“What would happen to my kids if I (or my partner/spouse/other parent) couldn’t take care of them?”
It’s a difficult, gut-wrenching prospect to consider, but thinking about the unthinkable and appointing guardians for your minor children now is one of the most important decisions a parent can make.
Creating an estate plan with a guardianship provision could ensure that your children will be taken care of by someone of your choosing – someone who you trust. Without this provision, you’re leaving the choice of legal guardian to a judge who may have an entirely different interpretation of what’s best for your children.
If you haven’t yet designated guardians, the following considerations should help you get started.
There’s no such thing as a perfect choice: For many parents, it’s not only avoidance of a difficult topic that prevents them from appointing a guardian. Often it’s also the pressure to make the perfect guardian choice.
In reality, there is no perfect choice because no one is you. Every candidate has pros and cons, and you and your partner may disagree about who’s in the best position to care for your children. Remember that you can change your choice at any time as circumstances and second thoughts dictate—and that a well thought out, though imperfect, choice is better than no choice.
I’m often asked if it’s “normal” for parents to pick family or friends. My response is “it depends” (typical lawyer, I know). In truth, only you know your family dynamics. Many of my clients do appoint family members as guardian(s), but some also choose friends. Often, there is guilt associated with choosing one family member over another or a friend over a family member. Try to put that guilt aside, because what you’re really doing is choosing what is best for your children. Listen to your gut. If someone doesn’t feel right or if you have doubts, there’s usually a very valid reason.
Compatibility: While there may not be a perfect guardian choice, some choices are certainly better than others. You want your children to be raised in the same way that you would raise them, so it’s important to consider things like the religion, education, and child-rearing philosophy of the guardians.
Guardians who already have children are a natural choice, but then again, if your kids don’t get along with theirs, the expanded brood could spell trouble. Relatedly, think about whether you want a married couple for guardians, or if the right single parent would work. More generally, considerations such as work schedule, maturity level, patience, morals, and values are extremely important for choice of guardian.
The age of your children: Grandparents might make sense for very young kids, but as kids get older, you might consider guardians better-suited to teenagers. In addition, the older your children, the more likely they are to have roots in their community and be opposed to a geographic change. For that reason, you might want to pick somebody who either lives in the same city that you do or would be willing to relocate there.
Age also matters in terms of imparting belief systems. If your kids are young, you may not have had the chance to fully instill morals and values, making the choice of guardian more critical.
Finally, in Colorado, minors age 12 or older have the power to object to a guardian “choice.” Because their objection to your appointment could instigate a court proceeding, it makes sense to consider an older child’s wishes.
Willingness to Serve: I’m often asked if you have to inform a nominated guardian. You don’t technically have to tell a nominated guardian that they’ve been named in your estate plan. Of course, this could lead to myriad problems, not least of which is somebody’s unwillingness or preference not to be a guardian.
Communicating with guardian candidates is a good way to better explore your options. In the course of discussion, you might learn things that will help you decide whether somebody is or isn’t a good choice. And once you’ve made a choice, don’t hesitate to let the chosen ones know how you want your kids raised. While your values should be clear to anyone you designate as guardian, it never hurts to be direct.
Keep in mind also that some individuals will be so honored that you have chosen them that they may not fully consider their own needs, family or lives. In addition, if and when a guardian is ever needed, a chosen candidate’s life situation or health may have changed. A proper estate plan will account for such contingencies. There are also ways to memorialize conditions for the acceptance by a guardian and guidelines for guardians after acceptance.
When we chose the guardians for our children ten years ago, my husband and I wrung our hands, pulled out our hair, and eventually held our noses and chose candidates that we could live with. Five years later, we had three children and our feelings about those candidates changed. We updated our documents to reflect the changes in our family, choice of candidates, and values. The candidates are not perfect…because they are not us. And before we send our kids off into official adulthood, I’m sure we’ll change them again.
If you have any questions about appointing a guardian for your children, or any other estate planning question, please let me know. I can be reached at Yvonne@oliverelaw.com or 303-974-5617.
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