How to Choose a Guardian for Your Children: One of the reasons people put off estate planning, even though they know it’s important, is that it forces them to confront the reality of their mortality. While we all know that (someday) we’re going to die, we hope and believe that someday is a long way away. So we put off the task of making the will or power of attorney a little longer, in favor of all the things that seem more important in the present.
Having an estate plan is essential for all adults. But once you have a small child, the urgency of having a plan for their future goes way up—especially if you might not be a part of that future. So you deal with your discomfort and sit down with an estate planning attorney who asks you, among other things, “Whom do you want to name as your child’s guardian?”
Chances are, this is a question you have thought about. But it’s not always an easy one to answer. There are a lot of important considerations in choosing a guardian for your minor child. It’s important to look at all of them and consider them together before making a decision.
Naming someone your child’s guardian is a big honor. It means that you are entrusting them with what is most precious to you. That said, you are also asking your chosen guardian to undertake a huge responsibility. Are they ready? Are they the right guardian for your child? And what can you do to make the arrangement work for everyone?
Here are tips on how to choose a guardian for your children:
Remember that what makes someone a great friend or even one of your child’s favorite adults may not make them an ideal guardian. Your best friend may be your child’s “fun uncle,” but if your child loses their parents, fun won’t be enough.
Think about how you want your guardian to raise your child. How do you want your child educated? Is it important to you that they be raised in a particular religious tradition? Are you strict, or more relaxed, as a disciplinarian? Is it important to you that your child be raised by someone with social and political views similar to yours?
You may not find a prospective guardian who will parent exactly as you would have. But you should be able to find someone who shares enough of your values that they will try to honor your wishes.
If your child is in a position to need a guardian to take over their care, their world has already been severely shaken. If it is possible to avoid more disruption for them, do so. It may be that the ideal person to care for them lives across the country, meaning your child might be losing not only their parents, but their home, school, and friends. If it is possible to name a qualified guardian who can keep the children in their familiar environment, strongly consider doing that.
Your brother and sister-in-law may seem like the perfect guardians, and they might be. But there is a reason you should name only one person in a couple as guardian. Otherwise, if the couple divorces, legal issues could arise. If you are planning to ask a blood relative or friend to serve as guardian, name only the person you’re closest to as the legal guardian—but make sure their spouse is on board, too, since they likely will have to play a role in raising your child if something happens to you.
You may have identified the best guardian for your child; but how would serving as guardian affect them? Does your intended guardian (especially if a grandparent) have the health and energy to care for your child (and if they are in good health now, are they likely to remain that way as your child grows)?
Then there is the effect on your intended guardian’s family. Would becoming your child’s guardian mean that the guardian must make a rapid transition from childlessness into parenthood? Or would the addition of your child (or children) to an existing family become overwhelming and possibly even necessitate a move to a larger home?
Discuss all of these issues with a prospective guardian, and encourage them to be honest with you about whether they are up to the challenge. There may be only a remote possibility that they will have to take it on, but if they do, there’s no turning back.
This may seem like an obvious thing to say. But you may have people in your life who think they have a “right” to be your child’s guardian, even if they would not be the best fit. For instance, you may have close friends whose values, circumstances, and location would make them better guardians for your child than your parents or other family members. Or you may need to choose one family member over another.
Resist the urge to name a less-than-ideal guardian just to “keep the peace.” Your child may have to live with your decision, possibly for many years. Do what’s best for them.
Once you’ve settled on a guardian, and discussed with them their willingness and ability to serve, the most important thing to do is to memorialize that decision in a legal document: your last will and testament. You may also want to create a trust to help provide for your child (and help their guardian) should anything happen to you.
The best way to do this is through a consultation with an experienced estate planning attorney. An attorney will help you evaluate your likely needs and those of your children, draft the documents you need to give effect to your wishes, and make sure they comply with New Mexico law.
Once you have chosen a guardian and created an estate plan, of course, that’s not the end of things. Your children’s needs, and your intended guardian’s, may change over the years. You should revisit your estate plan every few years to make sure it still meets everyone’s needs.
If you have questions about choosing a guardian for your child, or any other aspect about your estate plan, we invite you to contact our law office to schedule a consultation.
© 2021 The Law Offices of Dana M. Kyle, P.A.