June 7, 2012

Who should raise your children if for some reason you and your spouse are unable to do so? It’s not an easy question to answer, but if you have young children, it is a topic you most certainly should address in your estate plan. Otherwise, a court will decide, and their decision will probably not be the same as the one you would have made, and may not even be in the best interests of your children.

Some of the most important issues to consider when choosing a guardian include:

• Does the prospective guardian have a genuine interest in your children’s well-being?
• Does the prospective guardian share your values?
• Can he or she handle the role physically and emotionally? What about financially, if you cannot provide him or her with enough assets to raise your children?
• Does the prospective guardian already have children of his or her own? Will he or she be able to make enough time to adequately care for and look after your children?
• Where does the prospective guardian live? Would that be a good fit for your children? Would having to move far away make an already stressful situation for your children even more so?
• Is it essential that all your children share the same guardian? Most parents say yes, but in some circumstances, such as when your children are of significantly different ages, naming more than one guardian is an option.
• Should you choose one person to act as personal guardian and another to manage the financial arrangements for your children-that is, name a second person to act as Custodian or Trustee?

In certain situations, such as when the best surrogate parent for your children is not necessarily the best person to handle financial matters, this option is worth considering.

• Perhaps most important of all, have you spoken to the prospective guardian about taking on such a responsibility, and does he or she seem readily willing to do so?

What if you and your child’s other parent cannot agree?
It goes without saying that you and your child’s other parent should name the same guardian for your children. But what if you are divorced, or for whatever reason you and your spouse cannot agree on the most suitable guardian? Naming different guardians will lead to a battle in court should you and the children’s other parent pass away while your children are still minors. The decision over guardianship will then be in the judge’s hands.

Part of the solution to this situation is to leave a Letter of Explanation, outlining your reasons for choice of guardian. It is important to have an experienced attorney assist you in the drafting of such a letter, but here are the basics of what should be included:

• Who the children would prefer, that is, the relationship between the children and the prospective guardian
• Why your choice of guardian will best meet the children’s needs, particularly with regard to providing stability and proper care
• The values and moral fitness of the prospective guardian
• The physical and financial ability of the prospective guardian to raise your children

We have helped many couples select the ideal guardian for their children and designed wills or other planning documents to ensure their wishes are carried out. We welcome the opportunity to do the same for you.