How to Choose a Guardian

Photo by reverbca

Photo by reverbca

Many parents know, from the moment they bring home a new baby, or at least from the time they start getting a decent night’s sleep, that naming a guardian for their children is one of those important grown-up tasks that they should do. But a lot of people just don’t do it. And it’s not because they are bad parents, or because they are procrastinators. What I have found in working with young families for more than ten years is that people put off this decision because they are just overwhelmed by the difficulty of even thinking about not being around to raise their kids. Also, they just don’t know whom to choose.

Worse, not choosing a guardian also means not doing the estate planning basics that all parents should do: writing a simple will. And that means that, in addition to not naming anyone to raise their minor children, they’re also not putting in place any management system for the money that their children would inherit. When you get right down to it, NOBODY is going to be as great a parent as you are, but choosing a guardian is like preparing for a big earthquake: you don’t do it because you want to, you do it because you want to make sure that if the worst happens, the people you love the most are as prepared and comfortable as possible.

So, in the spirit of solving one problem at a time, here are some tips and techniques that I’ve found that will help families choose a guardian so that they can DivorceRxmove ahead on drafting a simple will.

1. Narrow your time frame. Think about the next three to five years. If your children are babies and your parents are young, grandparents may be the right choice. When your kids are teenagers and your parents are in their eighties, you will need to revisit that choice. The odds are you’ll be revisiting your estate plan within 5-10 years anyway. Things change. Your guardians may move away or get divorced. You might move to a new city. And, as your children get older, they’ll change too. They might be okay with moving to Chicago when they’re little, but probably won’t want to move far away when they’re in middle school.

2. Make lists. Have you and your partner go off to separate corners, and make a list of your top five choices for guardians. Come back together, and see if you agree on three choices. (Or, as one of my more cynical lawyer friends once said, just pick the one person that you can both come up with.)

3. Compromise. Nobody is perfect. To pick a guardian you are going to have to compromise. Figure out what is the most important thing for you and compromise on the rest. Is it location? Is it faith? Is it growing up near family and friends? Whatever matters most to you, identify it. Then let that priority guide your choice.

4. Focus on your children. Who do your children love and respect? Who would they most like to be with if you were not around? If your kids love your best friend from college, please pay attention to that. If your kids love your parents, but you worry that your parents are getting older, remember, you can always change your will in three to five years.

5. Widen your net. You do not have to name family members. You can name dear friends if that’s the best choice for your kids. And you are not under any legal or moral obligation to tell your mother-in-law that she’s not your first choice. If you are really concerned that your mother-in-law will be devastated to discover the truth, consider writing a letter, to be opened in the event of your death, explaining why you made the choices that you did.

6. Spend time with the people you are considering. It would be funny if it weren’t so awkward, but I have gotten phone calls from clients who are in the process of writing a will after they’ve had a disastrous trip to the beach with a relative. Suddenly a brother’s inability to laugh off the chocolate ice cream in the backseat of his new car takes on a whole new significance if he’s someone that you thought might be a good guardian, or a sister’s all-white apartment suddenly doesn’t look so inviting when considering a long-term stay by your own little darlings.

Personify7. Talk to your prospective guardians. You might find out that their dance card is already full and they’re not comfortable with taking on another potential responsibility. You might find out that they need you to increase your life insurance so that there’s enough money to finance a bigger house.

8. Give yourself some credit. You’ve done harder things than make a will. (Getting through this week was probably way harder than doing a will.) Self-help  and do-it-yourself wills are cheap (or free), straight-forward and get the basics done. If you want professional help, or want to create a living trust, estate planning attorneys are, as a rule, easy to talk to and actually nice (we may be the world’s happiest lawyers). You don’t have to solve every estate planning problem and you don’t have to make it complicated and memorize the tax code. For now, focus on getting the basics done. It’s not too late. Here’s my motto for estate planning and most parental tasks: Feel good, not guilty!


Liza Weiman Hanks is an estate planning attorney at Finch Montgomery Wright LLP in Palo Alto, and the author of The Mom’s Guide to Wills and Estate Planning, and The Trustee’s Legal Companion. She writes two blogs: The Palo Alto Estate Planning Blog, and Ask Liza: Nolo’s Estate Planning Blog.



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