Part of preparing an estate plan is choosing who will raise your children in your absence. Normally the surviving parent will become a minor child’s sole custodian (there are limited circumstances when this would not occur, but that is rare).

When a child is still a minor and neither biological (or adoptive) parent is living this is when the question of who should take care of your minor child(ren) arises.  A court will first look to the person nominated as guardian in your will, if you have a will. This is one of the most important reasons for parents to have an estate plan. A parent who has planned ahead will allow their children and nominated guardian to avoid a lengthy judicial proceeding where the court determines who should be the guardian—a frightening and unnecessary situation.

In addition to a guardian, you may also nominate a conservator.  The difference is that a guardian manages the daily caretaking responsibilities, whereas a conservator manages the property and financial affairs of your child.  For most people, it is often one in the same person, but for some families it is good to split up those tasks. Generally speaking, under a trust based estate plan, the trustee will already be in control of the assets until the child reaches a certain age where a portion is released, and then a second age where the remainder is released… so a conservator would be unnecessary in those situations (and keep the court out of your family business). However, where an estate plan does not include a trust to govern income over a long period, appointing a conservator is prudent.

The most worrying question remains: “How do I choose the right person?”

This is one of the most difficult decisions a parent will ever face. It’s easy to become overwhelmed and feel that no one is good enough. Engaging the process will help you move past the fear and ensure your children have the very best support in what will be a difficult time.

First, make a list of all the possible candidates and consider the following:

  • Does the candidate’s parenting style, values, and religious/spiritual beliefs closely match your own?
  • Does the candidate have the ability to care for the child’s physical, emotional, and financially well-being?
  • Does your child have a relationship with the candidate already? What is the nature of that relationship?
  • Will your child have to move? Does moving pose any problems?
  • Does the candidate have other children? If so, does your child fit in? And, does the candidate have enough resources to care for both their children and yours?
  • Does the candidate have enough time and energy to devote to your child?

Narrow your list accordingly, then engage the remaining candidates. Talk to them about how they feel about being named guardian of your child. These conversations will help you appreciate each candidate’s values and attitudes. The more information, the better. Ask the hard questions, such as the candidate’s financial stability and spiritual grounding.

Once all the information has been evaluated, you, and your spouse, if he or she is involved in the process, will decide. After making your wishes known to the proposed guardian and he or she accepts responsibility, your attorney will take the appropriate action to make sure your wishes are fulfilled.

When these situations arise parents also like to know that no matter who is appointed the guardian, extended family members, such as grandparents, still maintain a relationship with the child.  This becomes more difficult to control after passing, and a lot of trust is placed in the guardian to fulfill wishes, but you can start by memorializing your “wishes” in a testamentary devise, such as a will, which can be persuasive to a court IF a grandparent needs to initiate a suit to establish his or her grandparent rights… Stay Tuned for more on the subject of grandparent rights in an upcoming blog post.

This blog post was written by Benjamin W. Bryant, J.D., at Schmeltzer Law, and is not intended as legal advice nor does it create an attorney-client relationship.  If you have questions or concerns specific to you, you are encouraged to seek qualified legal counsel.

Benjamin W. Bryant

Schmeltzer Law PLLC

[email protected]