Nomination of Guardians

If you have minor children, your estate plan should include a nomination of guardian.

Who you nominate as guardian over your minor children is not mandatory on the court. This means a court is not obligated to legally appoint the person you named as guardian of your children. However, it is very persuasive. Absent some extreme reason for not doing so, the court will typically go with your choice. Your input is valued by the court. Write down your reasons for your choices. Additionally, if you feel strongly about someone not being a guardian, you should document your reasons. Any information you provide to the court will be persuasive in the process appointing a personal guardian who will be awarded legal custody of your children.

If you don't nominate a guardian to take care of your minor children, a court will choose one with no input from you. Your relatives could disagree on who might be best suited to raise your children and your children may be placed with someone you would have never chosen. That's why it's important to nominate a guardian while you still can.

Your choices for guardian do not need to be limited to close family members. Consider close friends, the families of your children's friends, or even teachers or anyone whom you and your children have a special relationship. Choose loving people who would make good role modes that possess your same moral, educational and social values who have a parenting style similar to your own.

When drawing up your guardian choices, as well as your children's needs, think about the interests and abilities of the persons you intend to nominate. Do they have children that get along with your children? If they don't have children, how would raising children fit into their lifestyle? If they are older, would they want to be parents of a young child? If they live far from your community or in a different culture, consider the effect that change would have on your children. If you choose a couple, identify whether you would want your children to stay with the survivor should one of them die.

Make a list and then narrow it down to a primary choice and some backup choices. Once you get past some of the obvious reasons why someone might be a candidate to take your place (physical health, age, finances) the number one criterion is to choose someone who values the things you value that you want for your children and who will act the way you would act in any given situation. Trust your instincts. Typically someone will feel more right than others. If your children are very young, predicting what their needs will be as they grow older is more difficult. An option would be to appoint a "Guardianship Panel". A Guardianship Panel can assess your children's needs and make the decision of who might be best suited to raise your children at the time a guardian is actually needed.

In addition to your choices for permanent guardians, name temporary guardians. A temporary guardian should be someone who lives very close and can care for your children should you be temporarily unable to care for them. A temporary guardian will also be able to step in and care for your children until your permanent guardian is available. This practice will eliminate the chances of your children spending time in the 'system'.

The person you pick as a guardian doesn't have to also be responsible for your estate. A comprehensive estate plan providing for your children's financial needs at your death will eliminate the need of continuing court involvement. Your trust document should provide comprehensive instructions to the trustee for the management of trust assets for your minor children. Your estate plan can provide your chosen trustees (who will manage the financial assets of your children's trusts) with guidelines of how you would like your estate assets to be divided and spent on your children beyond the basic necessities of life.