In Trusts and Estates | On January 22, 2019
As a parent, one of the most significant decisions I had to make in my estate planning wasn’t how to divide my estate or how to reduce taxes. It was who my husband and I should name as guardian of our young children. Fortunately my decision – although significant – wasn’t too difficult because I have several responsible family members who my children love and who love my children and whose values are in line with ours. If anything were to happen to my husband and me, I am at peace knowing that my children will be raised by the people we chose.
Because of its importance, often it’s the decision to name someone as guardian that becomes the mental obstacle in the way of completing an estate plan. It shouldn’t be. There are no right and wrong answers when it comes to planning our estates. There is only what is best for us and our families. I sometimes get asked by clients whether it would be okay to name a non-family member as their children’s guardian. Of course it would be – if that’s the person who is the best option for raising them.
There are many considerations that may inform the decision of naming a guardian. Some clients will find that one or two of these considerations outweigh all others. For some parents, keeping their children in the school or school district where they currently attend may be critical. In that case, if no family members live near by, a close family friend may be the best option to be the children’s guardian. Other parents may place the utmost importance on maintaining their children’s connection with family. For them, naming a family member – even if he or she resides across the country – may be the only suitable option.
These considerations do not have to be all or nothing. The document designating a guardian can provide that if the nearby family friend becomes guardian, the children are to spend as much time during school breaks with distant family as possible. The legal guardian’s residence does not need to be where the child actually resides (for school or other reasons). When he died in 2012, Adam Yauch’s (also known as MCA of the Beastie Boys) Will was admitted to probate and made publicly available. The solution he and his wife used was to designate his parents as their daughter’s guardian if the survivor of them died in an even year, and his wife’s parents as guardian if the survivor of them died in an odd year. This seemingly was the result of a compromise between parents of a minor who could not decide between two good options for their daughter’s care.
Also, the considerations that are primary when children are young may not be so critical when they’re older. Circumstances change, and with them, the person best suited to care for the children may change. An older child may have developed a strong support system of friends, teachers, mentors, coaches and spiritual leaders, making it in that child’s interests to stay in place. In fact, many older children will likely want to have some say in the matter.
The person designated as guardian does not need to be the person responsible for investing and distributing funds for the children. Designating different people for these different roles allows for checks and balances, spreading out the responsibility so that one person isn’t as likely to become overwhelmed, keeping more than one person involved in the child’s life, and possibly taking advantage of different skills sets of the people being named. For more information about trusts for minors, please refer to my partner, Greg Weinig’s, blog post from March 2016.
In both Delaware and Pennsylvania, the decision of who will be the guardian of a minor rests with the court, which is authorized to appoint someone in the children’s best interests. Of course, if a parent has designated whom they think would be the best choice for their children in their estate planning documents, the court will place great weight on that choice. If a parent leaves no estate planning documents, or the estate planning documents have no guardianship provisions, then the court may have to make the decision without the benefit of the parent’s clear expression, and may obtain input instead from other interested persons – which would probably include grandparents, aunts and uncles, and maybe family friends or more extended family.
Struggling with the decision of who to name as guardian should not be an impediment to completing an estate plan. An estate planning attorney can facilitate a conversation around any competing factors and perhaps offer some options not yet thought of.
Once the decision has been made and reduced to an executed document, parents often feel that a heavy weight has been removed from their shoulders. I certainly felt that way when I signed my documents.