I recently wrote about conservatorship and why you may not want to rely upon conservatorship when it comes to leaving money to your children and using that money for them.  Conservatorship ends up being one of the more cumbersome methods of having assets distributed to your surviving children, so conservatorship may not be the most desirable way to handle money after you are gone.

Guardianship, or setting up who will be able to make decisions on behalf of another – most often in estate planning concerning who will care for and raise your children if you are gone, is a different matter.  There aren’t really any viable alternatives to a guardianship for minor children.  Parents are able to raise their own children, and are even able to delegate decision making authority for their children to other people on a temporary basis.  But, there are not really any alternatives to guardianship for minor children once parents have passed away.  Parents make decisions for their children, but if parents have passed away, then a legal guardian needs to take over such decision making.  I often say my children are my most valuable assets, and I want to protect them.  I think most parents agree with me.

Parents really do need to appoint someone in their will, or other similar appointment of guardian document, to act as guardian for their children in the case that parents pass away.  Minor children are not capable of giving legal consent to have someone else raise them, as that consent comes from the parents, not the minor children themselves.  Courts need to formally recognize the guardian and issue the proper orders giving the guardian legal authority to act on behalf of the minor children, but parents can choose who should be named as guardian.

 

You Get to Choose the Guardian for Your Own Children

For those who have young children, who would raise those children when you are gone is a major concern.  Many people think it needs to be grandparents, or an aunt or an uncle, or other family member, but that is not required.  You get to choose who will raise your children as the guardians.  Most people I know have several siblings, or their spouse has several siblings, so that is often a good starting place to look for a guardian.  Siblings were raised by the same parents, and siblings do tend to have similar views on family values and what goes into raising children, but that isn’t always the case.

I have clients who have 7- 10 siblings, or siblings-in-law, yet have different views on parenting that any of their siblings.  Perhaps they disagree about how much influence or control a parent should have over a child’s decisions, or perhaps they disagree about politics or religion.  Whatever the disagreements are, when you are selecting a guardian for your minor children, you want to carefully evaluate how the guardian will view raising your children.  A sibling may, or may not, align with your values and may, or may not, be the right choice.

 

Even Those Who Raised You Might Be Right or Wrong for  Your Children

The same goes for grandparents.  Grandparents may be called upon to raise grandchildren, but if health concerns or outdated views of life conflict with what parents want, then choosing grandparents as guardians may not be the best idea.  Certainly you can choose grandparents, siblings, or others to raise minor children, but you want to think about who you choose and choose someone who can handle the responsibility of raising your child.  Family members, like grandparents, are often a good choice, but they are not required to be named as guardians.

 

In Some Cases Your Choice May Be Limited

I have also had clients who wanted to exclude their ex-spouse from acting as a guardian of their minor children.  I do have to explain that your will or trust is not powerful enough to overcome a court order.  If you have an ex-spouse and the ex-spouse has parenting rights, then the ex-spouse will be the first in line to raise their own children, and you can’t just exclude the ex-spouse in a will or trust, no matter how much you may want to exclude the ex-spouse.  Basically, if a parent is still alive and able to act as a parent, then the parent’s right to raise their own child will not be overcome by a will or trust’s stated preference for someone other than the ex-spouse.

 

Choosing a Guardian is an Essential Part of Your Estate Plan

When you choose a guardian as part of your will and estate plan, you choose who will raise your children.  Although it is great that the government has a whole foster system set up to care for children who are without parents, most people I know do not want their children to end up in the foster system.  Instead, they would prefer that their children be raised by those who are familiar to them, and those they love.  Family members can fulfil that role, and allow the minor children to have some continuity of family relationships after the passing of a parent.  For those who have minor children, naming a guardian to care for your minor children is likely the most important decision you can make in your estate plan.

As I said earlier: my children are my most valuable assets.  They are not income producing assets, and are often the exact opposite of income producing, but my children are definitely my most valuable assets and I want to protect them and do what is best for them.  Naming a guardian that I want to raise my children, and who shares my values is the best way I can protect them, and the same goes for you.  If you want to set up guardians as part of your estate plan, please click the button below to set up an appointment.