• Does the Guardian have to be a relative?
• Can my family members challenge the appointment of the Guardian I designated?
• Can I designate one person to care for my children and another to manage their inheritance?
• What happens if I’m divorced from my child’s other parent and I don’t think he/she is fit to be my child’s Guardian?
• Can I exclude people from being Guardians of my children?
Whether you use an attorney or not, having a Will and a Power of Attorney prepared is better than having nothing at all. The most important thing is that parents properly designate legal Guardians of their children.
Parents should think carefully before selecting a Guardian for their children. Your primary concern is the wellbeing of the children and you should not pick someone simply because they might be angry, hurt or mad if they weren’t selected. Issues to consider in choosing a Guardian include the following:
• Is the person willing to serve as Guardian?
• Does the person have a good relationship with your children?
• Does the person share your values, ethics, spiritual beliefs and morals?
• Does the person live in the area where you want your children raised?
• Do you want your children to be raised by a married couple? What happens if they divorce?
• Does the person manage money well?
You should discuss your decision with the prospective Guardians to ensure that they feel comfortable with the responsibility. You should also name backup Guardians in case circumstances change and the person who is your first choice is unable to accept the responsibility.
When a person dies without a Will, their assets are distributed according to a fairly standard formula (first to their spouse, then their children, then to their parents and siblings). But in the unfortunate event that both parents die without having named a legal Guardian for their children, there is no standard formula for determining who becomes their Guardian. Instead, a judge designates who the children’s Guardian will be.
Although this is a very difficult decision, parents know who is best-suited to be the Guardian of their children should they both die. Therefore, both parents should prepare Wills and Powers of Attorney naming the Guardians of their children. Although a judge will still need to sign off on the appointment, most courts will respect parents’ wishes. In support their decision, parents should also write a letter that explains their reasons for designating the particular person as their children’s Guardian.
No parent wants to imagine that they might die while their children are still young. Consequently, most parents have not taken the steps needed to name a legal Guardian for their children in the unfortunate event that they die or become incapacitated. This can lead to fights in court among your children, family members, friends and Social Services. Also, many parents who have designated Guardians for their children have done so incorrectly.