What to Consider When Naming a Guardian for Minor Children

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Do you have minor children? If you answered yes, have you thought about who will take care of your children if you die? This concern is the number one reason for making a will. You do everything you can to be a good parent. As part of caring for your children, you need to prepare a will that includes plans for your children’s care if you are no longer around to do so.

How Is a Guardian Appointed?

A parent can appoint a guardian of his or her minor children in a will.

The appointment must be made in a valid will. A letter or memorandum written by a parent requesting the appointment of a guardian in the event of his or her death is not a binding document. If there is not a will and the parents are deceased, the court will select and appoint a guardian. 

A guardian is a sort of substitute parent. For as long as the ward (the minor child is called a ward of the guardian) is under the age of majority, age 18, the guardian has the same rights and duties as a parent. As parents, you and your spouse are the so-called “natural guardians” of your minor children. Natural guardianship is a personal right to the custody of a child until the child reaches the age of majority. 

There are two offices and responsibilities when considering a guardian for your children.

  1. Guardian of the person, which is physical custody of the minor
  2. Guardian of the minor’s estate, which is the care and management of the minor’s property. 

    It is not necessary that the same person holds both offices. You can split the responsibilities.

    When you name guardians for your children in your will, it is customary, but not legally required, that you ask the guardians if they would be willing to serve. You should also name successors in case your first choice guardians are also deceased, ill, or have other life situations which will make it impossible for them to raise your children.

    If you choose a couple, a husband and wife, to be the substitute parents for your children, you should address the possible divorce of the couple. Should one of them be the sole guardian in that case?

    Guardianship by Committee

    Another option is to provide a mechanism in the will for the selection of a guardian. For example, instead of naming the proposed guardian, you may choose a committee that would be charged with selecting your children’s guardian. Perhaps, a group consisting of you and your spouse’s parents and siblings would decide, by majority vote.

    Since the age of majority is 18, many parents who make wills name a guardian of the person for minor children, but direct their property to be held by a trustee. By doing this they can instruct the trustee exactly what to do with the money, for what purposes it should be made available to the child, and at what age it should ultimately be distributed. For example, the trustee may be directed to use the income and principal for the child’s health, education, and support, as the trustee deems appropriate, and distribute the principal of the trust in thirds at ages 21, 25 and 30. Again, sometimes it is appropriate to have the same person who is guardian of the minor as trustee, and other times it is not.

    If the trustee is someone other than the person who has physical custody of your children, make sure that the guardian with physical custody is compensated appropriately. For example, if he or she has to stop working to care your kids. Also consider - will their home be large enough to accommodate their kids and yours? Will they have to move? Should your will provide for that expense?  Unfortunately, nothing is simple.

    Guardianship and Divorce

    If you are divorced with minor children, and you die, custody of your children automatically passes to the other parent as natural guardian, unless proven unfit. A natural guardian, however, does not have any authority to exercise control over the minor child’s property, except in limited circumstances where the court has approved an award to the parent.