How to Nominate a Guardian for Your Children
Most of us do not want to think about a world in which we are not there to care for our children. Unfortunately, there is always the chance of passing while your kids are still under the age of 18. That’s why it’s so important to nominate a guardian for your children, and hope that it’s a plan that will never have to be put into action.
For some folks, this is an easy and almost natural decision. For many others, however, the task can be overwhelming. Below are a few easy steps to take when determining who should serve as a legal guardian of your minor children.
Step #1: Talk Openly and Honestly with Your Spouse
In my experience, many married couples put off creating an estate plan because they cannot come to an agreement on who should “get the kids.” In some situations, this conversation is avoided completely, which is one of the worst things you could do.
Instead of first talking about who will raise your kids, talk about how you would like your kids to be raised. Most likely, you’ll find common ground here. Do you want your children to grow up in a tough, rigidly disciplined household or one that is a little more lax when it comes to rules? Do you want them to have everything they want given to them, or do you want the focus to be on learning the value of hard work?
Once you determine how you want your kids to be raised, now you can begin to look at who is best situated to raise your kids the way you want them raised. Understand, though, that no one will raise your kids exactly how you want them to be raised. Instead, you should be looking at who is most likely to raise them how you would, based on their current parenting style or their personality. This should help you narrow down who you should nominate as guardian of your minor children.
Step #2: Ask Your Potential Guardian If They Are Willing
Most people do not make this mistake, but it does happen on occasion. It’s important to make sure the person you wish to nominate as guardian is willing to take on the task of being the appointed legal guardian. If they say no, go back to Step #1. If they agree, make sure they understand that if their circumstances change and they do not want to or are not able to be the guardian, they need to let you know as soon as possible. Changing a guardianship nomination is generally easy and inexpensive, but the nature of the role is so spontaneous that waiting to make changes is not recommended. With your chosen guardian on board, it’s time to move to Step #3!
Step #3: Nominate Your Guardian as Part of Your Complete Estate Plan
While getting your complete estate plan is outside of the scope of this blog, you can read more about why it is important to meet with an attorney to get a full plan [here] (link to “A Few Documents vs A Plan” blog post).
Now for the legal stuff. No need to worry, it’s fairly simple. When you meet with your estate planning attorney, they will ask who you want to nominate as a guardian in your will. Your attorney should mention this, but a nomination is not binding on the Clerk of Court, who has the final say on who the guardian is.
“What!?! I go through the process of nominating someone, and the Clerk of Court can just choose someone else!!??”… Not exactly. By law, the Clerk must determine what is in the best interest of the child. However, great weight is given to the person nominated in the will. From a practical standpoint, this means that, unless the person you nominate is incredibly unfit to be a guardian, he or she will be approved as guardian by the Clerk.
Step #4 Discuss Your Choice with Family
This step may be even more difficult than Step #1. However, I think it’s essential that you talk with other family members and even some friends about why you chose the guardian you did. Many family members are shocked to find that someone else is nominated as the guardian of their loved ones’ kids, which could lead them to challenge the will or the nomination thinking that it does not reflect the actual wishes of their loved ones. Unfortunately, this can cause a legal nightmare for your chosen guardian, and even worse, stress and heartache on them, your kids, and potentially other family members.
While this may not be avoided even by discussing your choice with family, people tend to be more receptive to news that comes from the actual person and not a document that person had drafted. I think it’s imperative to discuss who you nominate and why you nominated them with your family.
Nominating a guardian for your child or children can seem daunting. Fortunately, it can be completed in the few steps outlined above. Nominating a guardian for your minor children as part of a complete estate plan is a great way to gain confidence in your family’s future. When you set a plan in place for the worst case scenarios, you lift a weight off your shoulders and make it easier to focus on what truly matters.
If you have questions about nominating a guardian for your children, or if you are ready to create an estate plan that includes a guardianship nomination, please reach out to me at LawofZACooper.com/Contact!