One of your most important responsibilities as a parent is to select and legally document guardians for your minor children. This doesn’t mean just naming godparents or trusting the grandparents will step in if necessary. It means consciously deciding who would raise your children if you cannot, and legally documenting your choices to make sure the people you chose know what to do if they’re ever called upon.
However, most people have no idea how to even start this process, much less create a legally binding plan. Because of this, many parents simply never get around to doing it, and those who do often make one of several common mistakes even if they’ve worked with a lawyer.
Why? Because most lawyers haven’t been trained properly to help parents with this critical issue. As a result, it’s likely your children are extremely vulnerable to being taken out of your home and placed in the care of strangers or the state. This might be temporary while the authorities figure out what to do, or they could end up being raised to adulthood by someone you would have never chosen.
To help with this process, below are some basic steps to help you select and name a legal guardian. Regardless of whether you own any assets or significant wealth, it’s extremely important to complete this process immediately so you know that who you care about most—your children —will be cared for the way you want.
- Define Your Ideal Candidate
The first step in selecting a guardian is to come up with a list outlining the qualities and attributes you and your partner value most when it comes to the long-term care of your children. The list can mirror your own parenting philosophy and style, as well as list the qualities that would make up your absolute “dream” guardian.
In addition to qualities like parental values, discipline style, religious/spiritual background, kindness, and honesty, you also need to consider more practical matters. Is the person young enough and physically capable of raising your children to adulthood? Do they have a family of their own, and if so, would adding your children to the mix be too much?
Geography should also come into play. Do they live nearby, and if not, would it be a major hardship to relocate your children? Is their home in a location you would feel comfortable having your children grow up in?
You may also think you should consider the financial stability of your guardians, and that’s a frequent misconception. However, the people you name as legal guardians for your children are the people making decisions for their healthcare and their education, but they don’t need to be the ones managing your children’s financial needs.
Ideally, you’ll leave behind ample financial resources for your children and the people raising them. You can do this by establishing a trust for those resources and naming a financial guardian, or trustee, to oversee them.
- Make a List of Candidates
Based on those parenting qualities, start compiling a list of people in your life who match those qualities. Be sure to consider not only family, but also close friends.
Though you may feel obligated to choose a family member, this decision is about what’s best for your children’s future, not trying to protect someone’s feelings. If you’re having trouble coming up with enough suitable candidates, try coming up with people who you would definitely not want as guardians, and work backwards from there.
You may also consider the person a judge would likely select if you didn’t make your own choice and whether there are any other people you prefer to raise your children.
- Select First Responders (Temporary Guardians)
In addition to naming long-term guardians, you also need to choose someone in your local area to be a “first responder”, or temporary guardian. This is someone who lives near you, is willing to immediately care for your children during a time of crisis, and could take care of them until the long-term guardian is notified and appointed by the court pursuant to your long-term guardianship nomination.
If your children are in the care of someone like a babysitter without legal authority to have custody of them, the police will have no choice but to call Child Protective Services and take your children into the care of the authorities. From there, you children could be placed in the care of strangers until your named long-term guardian shows up, or until the court decides on an appropriate guardian.
This is an area where plans that only name a legal guardian through a Will typically fail. Beyond naming just a long-term guardian, you need a short-term, temporary guardian who’s named as the first responder and knows exactly what to do if something happens to you.
Once you’ve chosen your long-term guardian, it’s imperative that all temporary caretakers know exactly how to contact them. This precaution is not just about your death—it also covers your incapacity and any other situation when you are unable to return home for a long period of time.
Dahl Law Group
