Wills and Guardianship

Deadlocked over who should care for the children when you are gone?

One of the most universal concerns for people with minor children is this: Who will raise their children if the unthinkable happens and both parents die?

Choosing someone to fill your shoes is rarely an easy task, especially given that each parent often has different ideas about who would be the best choice. Parents sometimes grapple with this issue to the point that they put off completing their wills altogether.

There are two types of guardianship to consider. The personal guardian essentially picks up where the parents leave off in raising the children, whereas a property guardian oversees any assets left to the offspring. While it can be more convenient to have the same person serve both roles, some parents are able to overcome a stalemate in their decision by appointing one person’s top choice as personal guardian and the other’s favorite pick as property guardian. This option works particularly well when one candidate has fabulous parenting skills and another is more adept at financial management.

By law, every minor must have a guardian. If the parents fail to identify one, the state will step in to make the decision. For couples who can’t agree on a choice and for those who are simply not sure how to begin the selection process, keep the following tips in mind when choosing a guardian and backup candidates, breaking a stalemate and making sure the wishes of both parents are ultimately honored.

1. Individually write down your top five choices.

2. Share your lists and have a frank discussion about why you made your own choices and what concerns you have about your spouse’s selections.

3. After exchanging this information, create a common set of characteristics you both agree are very important. Focus on what’s best for the children, not necessarily what’s best for you as individuals or the family’s political situation. This could include characteristics such as similar values, attitudes and lifestyles; religion; age; mental and physical health; experience raising children; marital status and stability; current relationships the children have, not only with the potential guardian but with their offspring (if any); willingness to relocate to spare your children further upset; and ability to afford raising your children should your estate not completely provide for them.

4. Now review the names on your own lists and see if you would like to make any changes, keeping in mind those top characteristics you have jointly agreed upon.

5. Compare revised lists to see if you now have some overlapping candidates. If so, work to create a joint list in order of priority.

6. If you are still deadlocked, bring in a third party— someone who is not in the running for guardian and has no stake in the outcome. Although a trusted friend or family member sometimes works, a minister or therapist is often the better choice.

7. Remember that you can choose a successor guardian, add contingency clauses should the guardian’s life situation change, or simply change your mind about the nomination at any time. The guardian is not legally obligated to serve, even if he or she has previously agreed to do so. People back out far more often than you might think. So, it’s important to specify in your will a second or even third fallback.

8. Once you agree on your first choice, talk to this person in detail and ask for his or her commitment. Do the same with fallback candidates. Make sure to have a frank discussion. Don’t limit the discussion to just the emotional aspects. Be sure to reveal pertinent financial details about the resources that will be available to help them bring up your children. Don’t be surprised or harbor a grudge if your first pick declines. You would be putting your children in a difficult and painful, if not disastrous, situation if someone takes on the task of raising them without being fully committed. Beware as well that some family members might say yes out of guilt or for fear of offending you, even though they really want to say no. Make it comfortable for them to say no, so that when they say yes you know they really mean it. Be certain the person not only really, really understands the magnitude of the role, but freely embraces it.

Once you have a commitment from the guardian, describe in depth how you would want the children raised. These wishes can also be included in a separate letter or video to the nominee as well as any fallback candidates.

9. Understand that a judge will make the final determination. In each of your wills, provide specifics about your relationship with this person, the reasons why you have selected him or her, and why this person is the best choice to raise your children. If you are separated or divorced and your child’s other parent survives you, then that parent usually assumes guardianship unless you make a strong case otherwise in a letter attached to your will. Courts typically grant custody to the other legal parent unless it can be proven that the surviving parent has abandoned the child by not providing for or visiting the child for an extended period, or is unfit due to serious problems such as chronic drug or alcohol use, significant mental illness or a history of child abuse.

10. Finally, make sure to express to your children— be it through writing or in a video— the thinking behind your will, reasons for choice of guardian, life lessons, milestones and blessings along with hopes and dreams for their future.

Remember, no matter how hard it might be to reach a consensus on guardianship, no choice is always the worst choice of all.