Do it now: Name a guardian for your minor child(ren)

Davidson Estate Law

Davidson Estate Law

Aug 7, 2018

We know it’s hard. Thinking about someone else raising your children can stop you in your tracks. It feels crushing and too horrific to consider. But you must. If you don’t, a stranger will determine who raises your children if something happens to you – your children’s guardian could be a relative you despise or even a stranger you’ve never met.

No one will ever be you or parent exactly like you, but more than likely, there is someone you know that could do a decent job providing for your children’s general welfare, education, and medical needs if you are no longer available to do so. Parents with minor children need to name someone to raise them (a guardian) in the event both parents should die before the child becomes an adult. While the likelihood of that actually happening is slim, the consequences of not naming a guardian are more than intense.

If no guardian is named in your will, a judge – a stranger who does not know you, your child, or your relatives and friends – will decide who will raise your child. Anyone can ask to be considered, and the judge will select the person he or she deems most appropriate. Families tend to fight over children, especially if there’s money involved – and worse – no one may be willing to take your child; if that happens, the judge will place your child in foster care. On the other hand, if you name a guardian, the judge will likely support your choice.

How to Choose a Guardian:

Your children’s guardian can be a relative or friend. Here are the factors our clients have considered when selecting guardians (and backup guardians).

  • How well the children and potential guardian know and enjoy each other
  • Parenting style, moral values, educational level, health practices, religious/spiritual beliefs
  • Location – if the guardian lives far away, your children would have to move from a familiar school, friends, and neighborhood
  • The age and health of the guardian-candidates:
  • Grandparents may have the time, but they may or may not have the energy to keep up with a toddler or teenager.
  • An older guardian may become ill and/or even die before a child is grown, so there would be a double loss.
  • A younger guardian, especially a sibling, may be concentrating on finishing college or starting a career.
  • Emotional preparedness:
  • Someone who is single or who doesn’t want children may resent having to care for your children.
  • Someone with a houseful of their own children may or may not want more around.

WARNING: Serving as guardian and raising your children is a big deal; don’t spring such a responsibility on anyone. Ask your top candidates if they would be willing to serve, and name at least one alternate in case the first choice becomes unable to serve.

Who’s in Charge of the Money:

Raising your children should not be a financial burden for the guardian, and a candidate’s lack of finances should not be the deciding factor. You will need to provide enough money (from assets and/or life insurance) to provide for your children. Some parents also earmark funds to help the guardian buy a larger car or add to their existing home, so there’s plenty of room for extra children.

Factors to consider:

  • Naming a separate person to handle the money can be a good idea. That person would be the trustee in charge of the assets, but not guardian of the children, responsible for the day-to-day raising of the children.
  • However, having the same person raise the children and handle the money can make things simpler because the guardian would not have to ask someone else for money.
  • But the best person to raise the children may not be the best person to handle the money and it may be tempting for them to use this money for their own purposes.

Let’s Continue this Conversation:

We know it’s not easy, but don’t let that stop you. We’re happy to talk this through with you and legally document your wishes. Know that you can change your mind and select a different guardian anytime you’d like. The chances of needing the guardian to actually step in are usually slim (we always hope this is the one nomination that’s never actually needed); but, you’re a parent and your job is to provide for and protect your children, so let’s do this. Call our office now at 510-527-6774, for an appointment and we’ll get your children protected.

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1300 Clay Street, Suite 600

Oakland, CA 94612

(510) 527-6774

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