10 Issues to Consider When Choosing a Guardian for Your Minor Children

One of the most challenging aspects of estate planning comes down to a seemingly simple question: Who do you want to serve as guardian of your minor children? This question may elicit fear, uncertainty, and concern— and it may even bring your estate planning project to a halt.  With this is mind, we’ve come up with 10 issues to consider when selecting a guardian for your minor children.  

Overview

A legal guardian is a court-appointed individual (or married couple) that is charged with providing care for a minor child.  There are two types of guardians in Texas – guardian of the person and guardian of the estate.  A guardian of the person has physical care and custody of the minor child. A guardian of the estate is charged with handling financial matters for the minor child.  The guardian of the person and guardian of the estate can, but do not have to be, the same person.  

You have the ability to designate a guardian of your minor children in a Will or other written document.  If you fail to do so, the court will select a guardian to take care of your children—and it could be someone you’d put at the bottom of your list of candidates.  With this in mind, it is pivotal that you designate a guardian to care for your children in the event you pass away. 

10 Issues to Consider in Naming a Guardian

1.    Look to Family.  Often times, the most suitable person to serve as the guardian of your children is someone within your immediate family.  Perhaps you have a sibling or parent that has a close connection with your children and shares your value structure. If so, this family member would likely be an ideal candidate for guardian of your minor children.  

2.     Values Matter.  Every family is unique and has certain values that it holds near and dear.  Take a moment and consider the values that are most important to you in raising your children.  With this is mind, who among your inner circle embodies these same core values?  These individuals are often best suited to take care of your children.

3.    Finances.  Consider the potential guardian’s ability to manage finances.  Unless you have a revocable trust, the guardian of your minor children will likely be in charge of administering your children’s inheritance. The guardian should have sound financial principals or entrust a third-party professional, such as a financial advisor, with the responsibility of managing the inherited assets. 

Additionally, consider the financial impact that would result from the guardian taking your children into the guardian’s home.  Will the guardian be required to purchase a larger home to accommodate your children? Will the guardian need to renovate an existing home? Will your children go to private school?  You can address these issues in your estate plan, but it’s important to keep finances in mind when selecting a guardian.

4.    Time is Precious.  Consider whether a potential guardian has enough free time to dedicate to raising your children.  In the event a guardianship becomes necessary, your children will need to spend one-on-one time with the new guardian to develop a bond, cope with your death, and assimilate with the rest of the “new” family.  A married couple with two professional careers may seem appealing from the standpoint of financial security, but consider whether this couple will be emotionally available for your children. 

5.    Location, Location, Location.  Consider the impact of moving your children across the country following your death.  Many times, a great candidate to serve as guardian lives hundreds of miles away.  Uprooting children from their hometown and moving them out of their comfort zone can be extremely traumatizing to a child—especially following your death.  Try to find a guardian that will keep your children in their school system, city, and community.  

6.    Spiritual Advisor.  You may have the perfect guardian in mind, but there’s one problem: you share different religious beliefs. While religion may be a key factor in selecting a guardian, if the guardian you are considering is otherwise perfect, consider whether designating someone else as a “spiritual advisor” will solve the problem.  A spiritual advisor could be tasked with taking your children to church, bible study, and other events designed to strengthen your children’s religious upbringing. In your Will, you can designate this spiritual advisor (and backups), and request that the guardian allow the spiritual advisor to take an active role in the religious development of your children.

7.    Age.  When you are working through the guardian selection process, your mind may immediately jump to your parents—the people who raised you.  However, it is very important to consider the age of your parents and their physical ability to raise their grandchildren.  While it may be appropriate to designate your parents as primary guardians, be sure to have a backup plan for your children in case your parents are not in a position to adequately raise your children.  

8.    Prohibited Guardians.  Consider whether certain members of your family should be prohibited from serving as guardian of your minor children.  Unless you have designated a guardian in writing, Texas law generally provides that family members have priority to serve as guardian.  If you have a parent or sibling that should not serve as guardian of your children, you should be sure to expressly prohibit him/her from serving.  

9.    Listen to Your Children.  As your children get older, consider whether they have a preference for guardian.  A teenage child may have a good idea of who would be best suited to raise them in your absence.  Similarly, a teenage child may be able to provide insight into who should not serve as guardian. 

10.  Make Updates.  The guardian you designate today will likely not be the same person you want to serve 10 years from now.  Be sure to review your guardian designations every 1 to 2 years until your children reach the age of majority (18). Additionally, be sure to discuss this designation with the guardian to ensure he/she is able and willing to take on this responsibility.  

Conclusion

 Choosing a guardian for your minor children can be a daunting task, but we hope you find these tips helpful in evaluating potential candidates (or prohibited persons).  

At the end of the day, no matter how hard this decision may be, remember this: Nominating someone as guardian is almost certainly better than having a court choose one for you.