picture of concrete tiles on which is a parent and child in white road paint, by @kimsuzi08
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Your kids deserve great people looking after them. Thank goodness they have you! But without you, who would take care of them?

The next person in line is your kids’ other parent, and that’s usually a good choice. But if both of you die, or if you’d rather the other parent not have custody at all, it is on you to say so—in writing. Not choosing a guardian before you die can lead to subpar parenting, custody battles, and even your child being placed in the foster care system. Fortunately, a will allows you make that choice and avoid the aforementioned consequences. But what does a guardian do, legally? Who should you choose? And how should you go about it?

What’s a Guardian?

The duties of a guardian are many. They do everything you do now: feed your children, house them, give them advice, take them to soccer practice, teach them the greatness of chess or a firm handshake… the list goes on and on.

For legal purposes, guardians are divided into two types: 1) guardians of the person, and 2) guardians of the estate. A guardian of the person is in charge of the child. They take on the role of the parent in raising the child. A guardian of the estate is in charge of any assets in the child’s name, such as inheritances or personal injury settlements. When said assets are in a trust, the trustee often takes on this role.

Typically, people choose the same person to be both types of guardians for a child. But it’s not always the best choice—more on that later.

Who Should Be a Guardian?

So we know guardians are important, and we know how the legal system looks at guardians. But how should you look at guardians? That is to say, what should you look for? The short answer is someone who can take good care of your kid. But many factors play into that.

Connection with the child

Do they and your child get along? You may have the most responsible, like-minded individual ever, but if they don’t like your kid and your kid doesn’t like them, it’s not going to work out. This is why it is often best to choose someone your child already knows pretty well, like a family member or close family friend.

Responsibility

Are they someone who can be trusted with your children? Are they going to help them and care for them and make sure they have the best chance to succeed in life? No one will be as devoted to your children as you, but getting as close as possible is the goal.

Shared Values

Are they someone who thinks like you? You have a set of values that guide what you do, which your children are used to, and which you would like to pass on to your children. It is often the best practice, then, to find guardians of like mind. This can range from spiritual beliefs to ethics to which college you think is best.

Financial Stability

Are they good with money? Unless you are wealthy, your child’s guardian of the person will likely be supporting the child with their own funds. Are they able to support another person? Even if they have money now, are they likely to spend or lose it all in a couple years?

If you are leaving a trust for your child, it may be wise to have the guardian of the estate be a different, more fiscally responsible individual than the guardian of the person.

And Many More

While these are the most important aspects, there are dozens of others to consider: location, age, health, legal history, relationship to you, the guardian’s family, whether it would be wise to name a different guardian for each child, and more. It is not a decision to make lightly, but it does need to be made sooner rather than later. No sense in taking so long that you pass and your children go to someone you didn’t want anyway.

How Do I Protect My Kids?

Your brain is probably fit to burst, so let’s finish this off with a list of concrete steps to name guardians for your children:

  1. Think about it. Let what we’ve talked about here, simmer, and start compiling a list of people you would want to raise your kids.
  2. Ask them. Talk to each potential person and see if they would be willing to take the position. Better to ask now than appoint them and have them turn it down when your kids need it most. Talk to your children as well; they might bring up points you haven’t considered. Your goal is to narrow down the list to a primary, secondary, and tertiary choice.
  3. Talk with your attorney. Schedule a meeting and present your attorney with the list. If they see any legal problems, you can talk it through and find a suitable replacement.
  4. Create a written document. Have your attorney draft you a will. In your will, you can not only designate a guardian for your minor children, but also decide how your estate will be managed for their benefit.
  5. Explain your choices. In a letter to be kept with the above document, explain why you chose who you chose, to mitigate the potential for someone to contest it. This is especially important if the choices are not immediately obvious.
  6. Review your wishes. Review your choices every couple years, or after major events such as divorces, births, and deaths. They might change your list or how it will play out, and it’s better to be prepared than not.

What’s a Conclusion?

Thinking about what happens to your minor children if you pass away is not an easy topic, let alone who you would like to take over in your stead. But, speaking from experience in the legal field, taking the time now is far better for your children than what happens if you don’t.

And as always, if you are looking for advice on matters like these, give us a call for a free 15-minute consultation!

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