If you die without a will that appoints a guardian for your children, it will be left up to the Court to decide. The Court will consider what is in the child’s best interest. It may not be who you would want appointed as your child’s guardian.
When you are choosing a guardian, make sure you choose well. Here are some items to consider when you are choosing a guardian:
- Religious preference: If parents have specific wishes about their child’s spiritual practices, this is a conversation to be had with the guardians they appoint.
- Physical ability — now and later: This is especially an important case with children who have special needs who may require more continuing care as they get older.
- Emotional stability: Your 22-year-old artist brother who sleeps in a lot may not be ready for this.
- Location: If your sister in California is going to get the kids but you live in New York, is she supposed to come live in your house or would the kids move to her home in California? Does she live in a good school district? If your chosen guardian’s location would mean uprooting the children, don’t leave these questions to surviving family members to figure out on their own. If your appointed guardian lives outside the United States or even a time zone away, it’s especially critical to consult a lawyer, as different states have different laws about moving minors out of state.
- A deep bench: If the person is unable to care for your child, who is the back-up choice? If the person you chose to care for your child is unable or unwilling to become a guardian and you haven’t named an alternate, the court will select a guardian.
- Financial responsibility: There are two types of guardians of a child: the legal guardian — who has physical custody of the child, kisses boo-boos and signs permission slips — and a fiduciary guardian, who manages the deceased parents’ finances set aside for the child. The fiduciary role may be played by a conservator (sometimes used by courts in lieu of a guardian), personal representative, attorney-in-fact or custodian if there is not a trust and a trustee. It’s not necessary to divide the two roles, but it’s an option if you have concerns about your legal guardian’s money management skills or your fiduciary’s care-taking skills, or if you want to ensure a larger team of people is responsible for your child’s well-being after your death. If you do name a fiduciary guardian, make sure it’s someone familiar with your child’s needs and lifestyle so that there won’t be tensions over whether horseback-riding lessons are a luxury or an important source of comfort and consistency for a bereaved child.
- Teamwork: Will your physical guardian and fiduciary guardian work well together? If you do divide the roles between financial custody and guardianship, it’s important to consider whether the two parties will get along and work together for the sake of your child.
Ask permission before you appoint someone to these important roles. As always, open lines of communication are critical to finding the best guardian for your children, if you pass away.
