Of all the decisions you make during the estate planning process, legal guardianship decisions are probably the ones with the highest stakes. Naming the person you would want to raise your child/ren if you died or were incapacitated is a choice that could shape the rest of their lives. Sometimes there’s one obvious candidate, but not always. Parents often have to grapple with some tough questions before choosing who to name as guardians in their wills. There are both practical and deeply emotional considerations involved, and you might need some time to reflect on them before you’re ready to finalize this part of your estate plans.
WHAT COULD HAPPEN IF I DON’T NAME LEGAL GUARDIANS?
Life gets busy, and parents don’t always get around to the child-related estate planning tasks they know they should. As a hypothetical, let’s say the worst-case scenario happens: You and your child’s other legal parent both die or are incapacitated. You either didn’t appoint legal guardians in your wills, or the guardians you named are no longer able to fulfill the role. A Probate and Family Court judge would evaluate the prospective candidates (the adults in your family, other adults who are close to the children) and choose the guardian. In Massachusetts, a judge will allow children 14 or older to choose their own guardians as long as the judge agrees that the appointment would be in the child’s best interest.
WHAT SHOULD I CONSIDER WHEN MAKING LEGAL GUARDIANSHIP DECISIONS?
You can also talk through your specific guardianship concerns with your estate planning advisors, but here are some of the general considerations that may factor into your decision-making process.
- How and where you would want your kids to be raised in your absence. Think about things like core values, home environment, geography and temperament as you sift through prospective guardians. Is it important to you that a guardian shares your family’s religious beliefs and approach to discipline? How important is it to you that your kids stay within your local community and stay in their same school district? If a prospective guardian already has kids or other family members living in their home, would your kids feel safe and comfortable moving into that environment? Who’s going to be sensitive enough to care for kids who have lost their parent/s? Think through the realities of what day-to-day life might look for everyone involved and which setting would be the safest and most comfortable for your specific kids.
- Your kids’ preferences. Whether you wish to talk about your estate planning choices with your kids is up to you, but you may want to get older kids’ input about guardianship. Who would they want to live with if something happened to you?
- How willing and able your prospective guardians are for the job. Age, physical ability and financial stability are all going to be important considerations in legal guardianship decisions. Think long-term. If you name your 70-year-old mother as guardian for your infant child, is she going to be able to care for them when they’re 15 and she’s 85? Is your younger sibling who lives paycheck-to-paycheck going to be able to support them? (Even if you have life insurance and have used estate planning to create trusts to provide for your kids, you need a guardian who’s responsible enough to manage that money well.)
All that said: Age, money and core beliefs don’t matter if the person you’d choose to be your child’s guardian doesn’t want to do it. If you name someone in your will without having a conversation to make sure they’re willing to take on that responsibility, they could refuse the role if something did happen to you. That conflict would probably make a very difficult time even more painful for your kids and other surviving loved ones.
- How many people you should name. It’s always wise to have at least one back-up for your first choice, in the event that they’re no longer a viable candidate when the time comes to appoint a guardian. You’re free to name two or more back-ups if you wish.
However, be cautious about naming two people as co-guardians. Sometimes these arrangements can create unforeseen conflict. For example, you might think choosing your sister and brother-in-law as guardians would create extra stability and support for your kids, but what if he ends up being a much stricter disciplinarian than you’d like, or they’re divorced by the time they become guardians? Or, what if you name two people as co-guardians and they fundamentally disagree about big medical or educational decisions for your child? Those kinds of battles can escalate into court cases. For these reasons, it’s generally advisable to name one individual as legal guardian, unless you’re considering a couple you know and trust very well.
- The guardianship opinions of your co-parent(s). If you’re in a relationship with your child’s other legal parent, talk about your legal guardianship designations so you can name the same people in both your wills. If you were to get in an accident and die at the same time, having named different guardians for your shared children would be complicated.
If you’re not in a relationship with your child’s other parent, and/or have a nontraditional or blended family with step-parents involved, legal guardianship decisions can get messy. If you died, your child would generally go to their other legal parent, but what would happen if your co-parent then died? Would you be okay with your kids being raised by your ex’s current partner? Ultimately, you and your ex might name different guardians in your wills. But ideally, you can at least discuss your choices and ensure you’re both comfortable with each other’s chosen guardians.
YOU DON’T HAVE TO MAKE ESTATE PLANNING DECISIONS ALONE.
We know estate planning isn’t easy, but Sachetta, LLC’s estate planning advisors are here to make it as comfortable as possible. We can walk you through every step, using our experience and guidance to help you create estate plans that you feel good about. Whether it’s legal guardianship, trust creation, tax planning or some other element of estate planning, we’re happy to answer any questions you have. Contact us today!
Janice joined Sachetta as Manager of Wealth Management Operations with the merger of Wealth Management Advisors on January 1, 2022. For ten years prior she was Operations Manager for WMA. She began her career in financial services in 1996 and has worked at both national firms and small wealth management practices. Over that time, she has excelled in client relationships as well as the operational aspects of wealth management firms. Janice is responsible for the day to day operations of Sachetta. This includes trading and rebalancing portfolios, firm compliance, servicing client requests, and handling our client onboarding processes as well as ensuring all of our systems are running smoothly.