Selecting a Guardian for Minor Children

Kristen R. Testaverde, Esq. 

An extremely important and often difficult part of the estate planning process is the selection of a guardian or guardians for minor children.  This is a difficult concept to consider, as parents must contemplate the lives of their children without them.  The decision however, is one of the more important choices you can make for your children.  Making this choice can keep your minor children from facing additional stress in the event you pass on or become incapacitated.   

When selecting a guardian, parents should consider a variety of factors.  For example, parents should consider choosing a person who is of an age similar to their own, so that the guardian is unlikely to predecease the parent.  Further, when electing an elderly guardian, such as a grandparent, the parent  runs the risk of that the grandparent will pass on before the children reach adulthood, and this can cause additional stress and trauma.  In addition, if the parent of the children are nominating a couple as co-guardians, the parent should determine who will keep the children should the couple divorce or separate, or should one pass on.   

Parents should also consider the lifestyles and living arrangements of the proposed guardians.   For example, does the guardian share the parent’s ethical and moral beliefs?  Perhaps religion will also be a consideration.  Also consider other family members and their relationship to the guardian.  Will residing with this guardian allow for visitation with other relatives?  Will the children be uprooted and moved to a new place distant from other family, friends, and schools? 

Financially, parents can provide for guardians to be reimbursed for expenses so that the children are not a financial burden on the guardian.  In addition, parents can set up a trust for the benefit of minor children so that their needs are provided for with the proceeds of the parents’ estate.

Parents should also consider an Emergency Guardianship Proxy.  This document will provide for a temporary guardian for the minor children in the event the parents become incapacitated without having to drag out the will and waste time.  The document may also be valuable in other circumstances in which the parents are otherwise unavailable and the child or children are in emergency situations, such as medical emergencies.

Without an appointment of a guardian, the probate court will make the appointment of the guardian of your minor children.  While courts are to act in the best interest of the child,  the court may not have the same understanding of your child’s needs as you.   

Questions or Comments?  Leave a post or contact Attorney Testaverde at krtestaverde@gmail.com