FIVE CONSIDERATIONS WHEN NOMINATING A GUARDIAN FOR MINOR CHILDREN

Five Considerations When Nominating a Guardian for Minor Children
 
By Kiley Stuchlik, Attorney at Law
 
In our January 2020 blog, I discussed the importance of parents nominating others to take care of their children, both financially and physically, in the event of the death or incapacity of both parents. The proper place to nominate individuals to serve in the roles of guardian and trustee/conservator for minor children is in one’s last will and testament. In this article, I will focus on the guardianship role and five key considerations when nominating guardians for minor children:
 

1. Make arrangements for the immediate care of your minor children upon your death or incapacity.  For situations where parents have designated long-term guardians who do not live near the minor children, parents should also nominate temporary guardians who can take care of children immediately upon the death or incapacity of the minors’ parents. That temporary period could be a certain number of days or until a time designated by the parents, such as an end of a school year. Parents should also consider other arrangements such as including the temporary guardians as emergency contacts with the minor’s schools and executing a durable custodial power of attorney, which would allow the agents to act immediately in the parental role upon the parents’ incapacity, without the need to be appointed by the court.
   
2. If you nominate a married couple as guardians, include instructions as to what should occur in the event the couple divorces or either of them predecease you. For example, you can include instructions that if the couple divorces, one is the first choice and the other is your alternate choice. Or, perhaps you only want the couple to serve as guardians if they’re still together. In that case, include instructions to that effect and nominate an alternate guardian to serve should your first-choice nominees divorce.
   
3. Name alternate guardians to serve in the event your first choice is unavailable. Your first choice could predecease you, may be in an accident with you, or may be unable or unwilling to serve. It’s a good idea to nominate at least one alternate guardian and depending upon your circumstances and the age and health of your nominees, you may want to nominate several alternate guardians.
   
4. Exclude anyone you do not want to serve as guardian. The nomination of a guardian must be approved by a judge, upon the death or incapacity of the parents, with the judge ultimately making the appointment of a guardian. Therefore, if there is any family member or person who you believe would challenge your nomination or you would not want to serve in this role, you should include instructions in your will specifically excluding that person from acting in such a role. You can authorize the use of estate assets to contest the appointment of that person or defend any contest of your preferred appointment. 
5. Do not place undue emphasis on the financial resources of the person you wish to nominate as guardian. You can nominate individuals to manage assets and be the financial decision makers for your minor children in the event of your death or incapacity. The persons nominated as guardians need not be the same individuals you nominate to handle assets and finances. Persons nominated to handle assets and finances are typically referred to as trustees and conservators. You can provide money to support your minor children in the form of assets and/or life insurance to be managed by the trustees and/or conservators you nominate. The persons nominated as guardians should be the persons you believe would take the best care of your children on a daily basis. The proposed guardians should share your values and you should be confident in their ability to make healthcare, education, housing, and discipline decisions for your minor children.

 
If you’re ready to move forward with this important planning for your minor children, we can help.