“THE LEGAL CORNER”
By Sam A. Moak
How to Select a Guardian for Your Children
The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with a legal problem, including those whose questions are addressed here, should consult an attorney for advice on their particular circumstances.
The statistics are staggering: most parents do not have Wills or other documents naming guardians for their children if something happens to the parents. Fewer than 50-75% of parents have named guardians for their minor children.
Why? One reason is likely lack of knowledge – some parents might understand that a Will is the traditional place to name guardians for children (and the thought of planning for death doesn’t thrill them), but haven’t considered that a Will only applies at death. With medical advances that keep people alive longer, it is more likely that an accident or illness will result in an individual’s incapacity, not death. A stand-alone guardian nomination is an additional document that addresses this modern reality by naming guardians for children whenever the parents are “unavailable,” whether by short-term, long-term or indefinite incapacity, or by death.
Another common reason parents do not do designate guardians for their children is that they might think “Well, I just assumed my kids would be with my mother,” or “Wouldn’t my kids automatically go to my brother?” Assuming that a certain family member would take over automatically might work if there are no other blood relatives of either parent, or both parents’ extended families never disagree. If that is not the case, however, you don’t want to take a chance on leaving your children in the middle of a dispute (litigation) about whom can best care for them.
The biggest reason parents do not designate guardians for their children is that “no one feels right” to take their place. They start going through the obvious options and think, “this person isn’t perfect because A, that person isn’t perfect because B,” and so on. Or, in discussing the trade-offs, the spouses disagree on who to name.
First, think of people – there is no rule that guardians must be relatives – that are capable of fulfilling the role. For a guardian, start with people that have the health, stamina, and patience necessary to care for your children. An older grandparent who is slightly physically impaired (e.g., uses a cane) could work for one mild-mannered 15 year old, but probably not for rambunctious two year old twins. If your child is very involved in his school, sports, community activities, and/or religious organization and moving to where your sister (in-law) and family live would be an additional trauma for him, the family of his best friend might be a better choice if their child-rearing values are similar to yours.
Second, think about what you value most for your children – Family? Location? Religious observance? Lifestyle? Then, evaluate which people on the list best embody what you value most for your children. If you are truly stuck, think of the worst person who could be named by a court to take care of your children. Thinking about who you don’t want, and why, can help you articulate what you do want.
Lastly, realize no one is going to be able to “take your place”. In fact, the kind of planning we do keeps you in your place by providing instructions and guidance about what you want for your kids to the guardians, to the trustees managing how your money is spent on your kids’ behalf, and directly to your kids. By planning, you will be able to provide guidance to a less than ideal individual – a much better situation than having no plan and possibly family arguments or even foster care.
If you are part of the minority who has done their planning but it’s been some time since your documents were put in place, are the people still right? Or have situations changed caused by marriage, separation, divorce, births, deaths, change in location, level of trust, type of relationship, etc.? If so, does it affect their ability to serve in the role for which you have named them?
As a lawyer my job is to give counsel to clients on the choices the client has based on the law and the client’s circumstances. If you are having a hard time deciding who to name as guardian for your children, or any of your other fiduciaries (trustee, health care power of attorney), I can counsel you. Moreover, as a third party I can help spouses bridge their differences about who is the right person to be named guardian of their children.
If you’d like to learn more about naming guardians and estate planning, call our office today to schedule a time for us to sit down and talk.
Sam A. Moak is an attorney with the Huntsville law firm of Moak & Moak, P.C. He is licensed to practice in all fields of law by the Supreme Court of Texas, is a Member of the State Bar College, and is a member of the Real Estate, Probate and Trust Law Section of the State Bar of Texas.