Ten Things To Think About: Choosing a Testamentary Guardian for Your Child

Having children adds a new and vital dimension to estate planning. If the child's legal parents die or become incapacitated and never made arrangements, the child could be placed with a new family. This is a disruptive process for the child, even if the placement is with a grandparent or extended family. You can avoid this disruption if you choose a legal guardian for your child in your last will. 

The guardian you choose will take care of your children. They will make healthcare decisions, choose an appropriate school district, and more.

This article discusses the importance of choosing a legal guardian for your child as part of your estate planning. It also shares 10 key factors to consider when selecting a guardian.

Why Choose a Guardian During Estate Planning?

Many parents, especially new parents, may have concerns about what will happen to their children if they die or become incapacitated. They might have specific religious beliefs, parenting styles, or a child with special needs. They may want their child educated in a particular school district. A surviving parent may become incapacitated.

If parents die without having a named guardian, a probate court will appoint a guardian. Their child will not be guaranteed to be raised and educated in the way they want. The court will first look to:

• Blood relatives
• Other family members
• Extended family members

Close friends may be far down the court's list.

With the advice of an estate planning attorney, parents can choose a guardian or backup guardian. They can have peace of mind about their child's well-being.

A suitable guardian can make a big difference in their child's future. The child's legal guardian is more than a caregiver. A legal guardian will make decisions in all areas of the child's life. This includes ensuring no child abuse occurs in their home and making medical care decisions for the child.

Below are 10 things to consider in choosing a legal guardian for your child:

1. Consider the Different Types of Guardians

Two kinds of guardians are suitable for children: 

1. Guardians of property (conservators)
2. guardians of the person

A guardian of property manages the money or assets a child holds. This is possible when the parents are alive or after their death. A guardian of the person assumes the responsibility to take care of your child's well-being should the child's parents die.

2. Assess the Skills of Potential Guardians

When selecting a guardian, be aware of the two types of legal guardianships, and choose people with the skills or attributes that best suit those roles. For example, your accountant brother-in-law is a terrific choice for the children's conservator, but his workaholic nature may make him a poor choice for a guardian of the person.

Ask yourself if the candidate has educational, professional, or business experience related to performing the duties of a guardian or conservator. The guardian will handle financial matters on behalf of the ward, from real estate to paying living expenses and bills. They should have the experience and skills necessary to manage these assets.

A potential guardian should have the time to take care of the child and meet the child's needs. If your minor child has special needs, they will need more time and attention.

3. Consider Naming Multiple Guardians

Just as you can choose different people as guardians of the estate and person, you can also select more than one of each type if you have multiple children. For instance, if you have a large family and know that raising numerous children or managing their assets would be too much to ask of one person, you can assign a different guardian to each child.

Choosing conservators has fewer emotional ramifications. Conservators only have to manage the child's financial matters, including money and real estate.

With a guardian of the person there are more significant considerations with this type of legal guardianship. Keep in mind that splitting your children into different families could have adverse outcomes for their well-being.

4. Choose a Guardian With Shared Values

Choose someone you know well and who shares your goals, values, and parenting style, whether you are selecting a guardian of the person or estate. Even if the person you choose only manages the child's finances, you want that person to share your philosophy of childrearing in general.

For example, if you have specific religious beliefs, a legal guardian should share those beliefs. Shared values are necessary to raise your minor children as you wish.

5. Assess Their Financial Stability

Choose someone who has the financial resources to take care of your child. Raising and educating children costs a lot, and you do not want to impose these economic burdens on someone who can not afford them.

Your chosen guardian should also have a track record of making good financial decisions. A guardian of the estate has to make sound financial decisions to protect the estate.

6. Consider Physical Ability and Longevity

Choose someone who can see their responsibilities through to your child's adulthood. They should also be in good enough health to withstand the challenges of childrearing. While physical disabilities do not necessarily preclude good parenting, it is wise to consider health factors that may limit a person's life expectancy or ability to parent.

It may be tempting to choose your parents as guardians, but in general, they are less likely to outlive you than are persons your age or younger.

7. Think About Where Your Child Will Live

Consider the location of your potential guardian. If they do not live near your family, are they willing to move if necessary, or would your child have to relocate to their city and state?

This will affect:

• Where your child would live
• Whether your child must change schools
• Your child’s social life and support networks
• How easily your child can maintain relationships with extended family

Consider the impact of changing your child's environment. Moving to a new location and going to a different school can be a significant disruption on top of an already tumultuous time.

It’s also important to account for the community and resources available in the potential guardian's area. This includes:

• Schools
• Extracurricular activities
• Healthcare facilities

8. Consider a Guardian's Character

Your guardianship candidate should engender the respect, support, and cooperation of everyone affected by their decisions for your child. The guardian must interact with various professionals when caring for your child and should be someone who can manage relationships well.

The candidate should have a reputation for honesty, integrity, and responsibility. Who you select should demonstrate reliability and be trusted to make sound decisions under pressure.

The court won't approve someone with a history of drug or alcohol abuse or a criminal record. This is because a legal guardian with these histories may not be in the best interests of the child.

9. Ask Your Child About Their Wishes

Consider your child’s wishes about a potential guardian. Depending on the age of your children, this may be an essential factor in making decisions.

If your child is old enough, have an honest and age-appropriate conversation about their feelings and preferences. This can also help build trust and transparency. Reassure them you will make the final decision with their best interests in mind, balancing their wishes with practical considerations.

10. Get Your Guardian on Board

Although the guardian selection decision belongs to the parents, it is essential to get approval from the person you are considering before you make it final. There may be valid reasons why someone can not fulfill your request. It is better to find that out while you can make another selection.

Get Your Wishes in Writing

Once your decision is final, consult your attorney for legal advice. They can draft the documents needed to make your choices legally binding. Wills, trusts, and other legal documents can be used to implement your guardianship decisions. Your attorney can advise you on the proper procedure, prepare the necessary paperwork, and file any required documents.

Get Legal Help With Your Questions About Choosing a Guardian for Your Child

As you're thinking about your estate plan, one of the most important decisions you must make is designating a guardian for your child. There are several important legal aspects to consider, and you'll likely have questions about the process.

Reach out to an experienced family law attorney near you today to learn more about this process. Your attorney can advise you on the best way to select a guardian who aligns with your wishes and your child's best interests. They can also help you explore options like setting up trusts or other financial arrangements to support your child's future needs.