Selecting a Guardian For Minor Children Is Major Decision

When attorney and client sit down to make estate-planning decisions primary consideration is most times centered around the disposition of the client’s estate: Who gets what property and when.  Tax consequences frequently become a major factor.  But, in our experience, frequently the most contentious and important decisions our clients make are who will serve as fiduciaries of the client in executing the directions provided in the will.  In particular, when minor children are involved, who will serve as the guardian for the children.

The selection of guardian sometimes is the result of extended discussion by a married couple.  But, sometimes clients come to the estate planning process without having given the choice sufficient thought.  And, other times, the failure successfully to deal with the issue prevents a couple from moving forward with the entire process, resulting in a potential tragedy for the family.

Question: So, why is the selection of a guardian such an important issue and how should the decision be approached?  Answer: Without a will, if both parents are deceased, a custody battle can ensue between surviving relatives.  A deceased parent who dies without a will not only foregoes his or her opportunity to nominate a preferred guardian, but also exposes the estate and the child to the additional expenses and emotional cost of such a custody battle.  Furthermore, the functions of a guardian can be split.  A guardian of the child’s property can be named in a will in the event the person selected as guardian of the person of the minor is not well suited to financial management.  

What considerations should go into the selection of a guardian of the person of a minor? Obviously, the guardian of the person of the minor should know and understand the minor and his or her needs.  A close relative who lives in California or Florida and who seldom has seen your child may not be the best selection.  Furthermore, unless you would want the child to move away from the home in which he or she has grown up, the guardian of the person should be living near your home.  Alternatively, provisions could be made in the will for the guardian to move into your home to take care of your child, if that is otherwise feasible.  If the child must move to the guardian’s home, the existing residence may need to be expanded to provide for, say, a new bedroom.  Financial provision should be made in the will for the expansion.  

As mentioned, the guardian of the property of a minor may or may not be the same person as the guardian of the person of the minor.  The guardian of the property of a minor needs to have financial management skills to invest any money or property given directly to the minor. Naming someone as the guardian of the property of your son or daughter for emotional reasons does neither the guardian nor your child a favor, if the person named has no financial management skills.  Losing your child’s inheritance and future financial security in unwise investments would not be the way the guardian would like to be remembered by your children.  So, in making this selection, put sentiment aside and make an objective business decision.  

An additional thought: Normally a guardian of a minor’s property would be required to post a bond for his or her financial responsibility in handling the property.  This requirement can be waived in the will, but you should do so only if you are sure that such security is not necessary. In most cases, it is best to protect your child’s financial future, even if it “hurts” your guardian’s feelings and may cost an annual premium for the bond.     

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