Who Would Take Your Place as Parents?

As a parent, you put a great deal of effort into finding a loving, trustworthy person to care for your children while you're at work or even just out on the town for an evening. But many parents ignore or put off the most important child-care decision of all: Who will raise your children should something happen to you and your spouse?

We'd rather not contemplate such possibilities. Yet the only way to assure the "right" person will be looking after your minor children, if you and your spouse aren't there to do it, is to name a legal guardian. Otherwise, a judge will appoint whoever he or she feels is best suited to raising your children. Ask yourself, do you want someone else to make this choice for you?

How many guardians to choose
Your instincts may tell you to name a couple as guardians, thus designating a new "mom and dad" set. But having a pair of guardians can lead to problems later. What if one dies, or they get divorced? Can you envision either one raising your children alone? That's why many legal experts advise choosing one individual to be the legal guardian.

Still, selecting a couple may be a better option in some cases. "Sometimes people will name a brother as guardian, but in actuality it's his wife who will do most of the caregiving, take the kids to the doctor, and so on," says Susan Podebradsky, an attorney and guardianship administrator for the Dane County Probate Court in Madison, Wis. "It doesn't make sense for him to be the guardian just because he's the blood relative. In that situation, you might want to name the couple because both will need authority to make decisions and sign papers."

Thus, you'll need to consider your own situation when deciding whether one or both parts of a twosome should assume guardianship. Podebradsky recommends talking to the couple to find out if they have a preference about how this is set up. Get their thoughts about what they'd do if they were to go their separate ways.

In most cases you'll probably want to name the same guardian for all your children, but special circumstances may dictate otherwise. Your children may not be close to each other, and each may have a strong relationship with a different adult. For instance, stepsiblings and children far apart in age may have different key adults in their lives.

If you decide to name someone outside the immediate family as guardian, talk this over with family members.

Once you've narrowed your guardianship choices, talk to the people you're considering. "The first time you bring this up," Podebradsky suggests, "you might want to say, 'We're exploring possibilities. Would you be interested?' That leaves it more tentative until you've decided" among the possible candidates. Such a discussion allows you to find out if anyone is unwilling or has reservations about assuming this responsibility—good information to learn now. Also, name an alternate guardian in case your first choice is unable to assume child-rearing duties when the time comes.

You can designate your guardianship choices in your will. Just be sure people know where to find your will after you die. As another option, you might want to create a separate formal, legal document solely to name guardians. "Talk to your lawyer about the best way to make sure the guardianship information is available," Podebradsky advises. "Sometimes it may be better to have a separate piece of paper that's more readily available than a will—a paper that you could give to the guardian, for instance. Different jurisdictions may have different requirements for doing this."

How to choose a guardian
Here are a few factors to consider in choosing a guardian:

Relationship with your children. Is this a person your children already know well and like and respect—and someone who genuinely cares about them?





Age and physical abilities. Your first thought may be to designate a grandparent as guardian. But is he or she up to the task, physically and emotionally? Consider how many more years of child-rearing duties lie ahead. If you decide to name someone outside the immediate family as guardian, talk this over with family members. After your death, they may be shocked to learn you named a guardian who's not in the family, perhaps even spurring them to challenge your decision in court. That's much less likely to happen if they know what to expect.





"Talk to your lawyer about the best way to make sure the guardianship information is available."

Location. Selecting someone who lives in your community, or even in the same part of the city, will cause the least disruption for your children. Losing you will hit them hard enough. Having to move far away, change schools, and find new friends will pile on more tough adjustments at a difficult time.





Child-rearing philosophy. Look for someone who has values and child-rearing attitudes in line with your own.





Children. Having children isn't a prerequisite for being named guardian. You may know a childless person who'd make a great parent. If the person does have children, consider their ages and compatibility with your offspring.





Finances. The assets you leave behind can provide for your children's needs. But should those assets fall short, would the guardian be able to financially support your children?

Speaking of assets ...
You might want to consider establishing a trust to manage assets your children will inherit. A trustee you select will manage those assets and look after your children's financial needs, in accordance with your instructions.

Consider whether you want the same person to be in charge of raising your children and managing their inheritance. If you know someone who would do a great job at both, fine. But maybe you have a brother who'd make a fantastic dad, yet you question his judgment with finances. You may wish to name your brother as guardian and someone else as the financial gate-keeper.

Consider whether you want the same person to be in charge of raising your children and managing their inheritance.

What happens if you're divorced and believe your ex-spouse is lacking as a parent? This is a thorny area. Unless your ex legally has given up or been removed of guardianship rights, the surviving parent has rights to his or her children, even if that person did not gain legal custody after the divorce. If you die, the court is likely to recognize that parent's guardianship rights, even if you've chosen someone else to assume legal guardianship. The only exception would be if your ex-spouse is deemed an unfit parent by legal standards, which are stringent.

Still, you can attach a letter to your will or guardianship document, explaining to the judge why you believe your ex-spouse can't care for your children properly and why you think another choice is in their best interests. If you have concerns about how your ex-spouse would handle your children's inheritance, your best option is to establish a trust and appoint a trustee to be in charge of the money you leave behind.

Published January 21, 2002