Do It Now: Name a Guardian

We know it’s hard. For many parents, the idea of someone else raising their children is such a horrific thought that it is almost too difficult to consider.  But you must because the alternative is worse: if you haven’t properly nominated your choice of guardian, a judge who has never met you or your kids gets to make the decision for you.  Whatever tragedy has befallen your family will be even worse if your children are placed with an inappropriate family member or even a stranger.

Parents with minor children need to name someone to raise them (a guardian) in the event both parents should die or become incapacitated before the child becomes an adult. While one will ever parent exactly like you, more than likely there is someone you know that would do a good job providing for your children’s general welfare, education, and medical needs if you are no longer able to do so.  While the likelihood of that actually happening is slim, the reality is that it does happen to some.

Some states require a separate document to nominate a guardian for minor children.  In Oklahoma, you nominate a guardian in your Durable Power of Attorney in the event you become incapacitated, and in your Last Will and Testament if you are deceased.

If no guardian is named in your will, a judge that is likely unfamiliar with your family, relative and friends, will decide who will raise your child. Anyone can ask to be considered, and the judge will select the person he or she deems most appropriate. In the event the judge isn’t aware of someone willing to take your child, the judge will be forced to place your child in foster care. A much better option is for you to name your preferred guardian, and then a back-up if that person is unable to act. The judge will support your choice unless there is clear and convincing evidence that your nomination is no longer in your child’s best interest.

How to Choose a Guardian

Your children’s guardian can be a relative or friend. Here are the factors our clients have considered when selecting guardians (and backup guardians).

• How well the children and potential guardian know and enjoy each other
• Parenting style, moral values, educational level, health practices, religious/spiritual beliefs
• Location – if the guardian lives far away, your children would have to move from a familiar school, friends, and neighborhood
• The age and health of the guardian-candidates:
• Grandparents may have the time, but they may or may not have the energy to keep up with a toddler or teenager.
• An older guardian may become ill and/or even die before a child is grown, so there would be a double loss.
• A younger guardian, especially a sibling, may be concentrating on finishing college or starting a career.
• Emotional preparedness:

Someone who is single or who doesn’t want children may resent having to care for your children.

Someone with a houseful of their own children may or may not want more around.

Serving as guardian and raising your children is a big deal, so we recommend that you avoid springing this responsibility on anyone. Ask your top candidates if they would be willing to serve, and then name at least one alternate in case the first choice becomes unable to serve.  If circumstances change, know that you can select a different guardian anytime you’d like.

Who’s in Charge of the Money

A candidate’s lack of finances should not be the deciding factor in who raises your children.  Whenever possible, make plans to provide enough money to provide for your children so that they’re not a financial burden for the guardian.  Term life insurance is often the most affordable way to plan, as most families with minor children are still in the accumulation state of their financial planning.

Some parents choose to nominate one person to manage their child’s day-to-day care physical and another person to manage their finances.  This can provide a “checks and balances” on making sure the resources you leave to provide for your children are well-managed.  It can be a good idea to earmark funds to help the guardian buy a larger car or add to their existing home so there’s plenty of room for extra children, but you don’t want this discretion to be abused if you’ve planned on assets stretching long enough for specific purposes like funding college education.

Many parents name a trustee to manage assets in a trust instead of through the guardianship court.  This minimizes court interference because the trustee doesn’t have to ask a judge for permission before spending money on your child, so it can be more convenient for your guardian to request needed funds.  A trust can also spread out the distribution of assets well past the age of 18 and incentivize behaviors you’d want to encourage if you were still able, like finding meaningful employment, pursuing an education, and developing healthy habits.

Let’s Continue this Conversation

Don’t let the overwhelming nature of this conversation prevent you from taking the necessary steps to plan for your family’s needs in an emergency.  Littleton Legal PLLC is here to talk this through with you and legally document your wishes in your durable power of attorney, will or trust. As a parent and your job is to provide for and protect your children, so let’s do this together. Call our office today (918) 608-1836 to schedule your free consultation to discuss an individual approach to protecting your family.