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The Difficult Task of Naming Guardians for Minor Children

By: Emens & Wolper Law Firm, Heidi R. Kemp

I met with a young couple recently who came into my office to have Wills drafted – specifically because they have young children. They were about to head out on a vacation without the kids and had the last-minute thought that maybe they should do Wills to name guardians for their children just in case the worst happened while they were gone.

There are many good reasons to have a Will but if you have minor children, then having a Will is even more critical. You may name a guardian in your Will who will be responsible for raising your children in the event that something happens to you and your spouse while the children are still minors. This young couple seemed almost embarrassed to be rushing to do this last minute. But, whatever the impetus, whatever the motivation, it’s always better to do it.

I’ve come across people who have not done a Will because they could not decide on who to name as guardian. It could be that the spouses do not agree. Or, it could be that the two spouses can’t decide between two or more potential options. Here is my advice. As difficult as this decision is, it is always better to do something than nothing. First of all, if you do not have a guardian nominated in your Will, then any person can apply to the court to become guardian. The court then reviews all of the applications and makes the decision about who will be guardian. Isn’t it better if you, the parents, are the ones choosing who will raise your children? Also, depending on the court and the age of the children, the court may ask the children to weigh in on the decision, putting the children in a difficult position.

Second of all, it gives the family members some guidance. What I mean is this. Many family members may be “hurt” because you did not choose them as guardians. But, if you chose who want to raise the children, then the hurt family members can at least hang on to the thought that even though they wish it was them, they can respect your decision as the parents. I had an instance once where the client told me they had not made a Will because they could not decide between the wife’s sister and the husband’s sister. So, they had done nothing. Doing nothing is so much worse than potentially hurting someone’s feelings.

When considering who to name as guardian, there are any number of variables and each set of parents may place higher importance on different variables. Where do the guardians live – is it in the same school district? Who will parent the way that you do? How financially responsible are the guardians? Does the guardian have other children – is this a pro or con? And so on.

The same young couple who was rushing to get their Wills completed had no trouble naming the guardians for their children. But when it came to the back-up guardians? That was a different story. A long discussion ensued about who’s feelings would be hurt versus who was the best person to name versus who was likely to accept, etc. Here’s my advice, and this applies any time you are naming someone in a capacity such as guardian, executor, trustee, healthcare agent, etc. Name the best person(s) for the job. At the end of the day, yes, you may hurt a few feelings. But, those hurt feelings do not outweigh the importance of having the person whom you know and trust making the decisions. As I often tell my clients, you are not handing out Christmas presents. These positions come with real fiduciary duties, responsibilities, and burdens. Choose wisely!