Planning for your kids’ future is second nature—it’s exciting thinking about their dream careers or helping them save for a college education. But sometimes, parents have to plan for some not-so-fun things. When it comes to creating a legal contingency plan in case of your death or another tragedy that leaves you unable to care for your children, it’s a much more emotionally challenging exercise. Even if you’ve already created a will, you also need to choose someone to be the legal guardian of your under-18-year-old kids (and children of any age with special needs) to ensure they are protected, loved and well taken care of no matter what. Sometimes, just thinking about how to choose a guardian for your child is difficult, much less finding someone up for the task.
Likely, there are a lot of questions. Who will have a similar parenting style? Who can afford additional kids? Is there anyone who would keep all your kids together or be able to keep them in the same school district? What about taking them to church or keeping up your beloved family traditions? There are so many things to consider, and of course, none of the answers will be perfect. After all, you’re the best parent to your child, so anyone you choose will automatically be second-best.
The most loving thing you can do is set your kids up with a trusted guardian now, instead of leaving their fate to chance. We asked lawyers to share their best tips on how to choose a guardian for your children.
Checklist for choosing a guardian for your children
Choosing a guardian for your kids requires some special considerations. Get started with this expert-backed checklist of questions to ask yourself and potential guardians.
1. Is the person capable of being your child’s primary guardian and/or guardian of the estate?
There are two basic types of legal guardians, according to Collen Clark, a lawyer and founder of Schmidt & Clark, LLP: the guardian who is primarily responsible for raising the child and the guardian of the estate who will take care of the child’s finances.
“Ideally, a legal guardian should be someone who can adequately assume your role as a parent,” Clark tells Motherly. “This person should be able to provide the child with basic necessities, such as food, clothing and shelter. A legal guardian should also have the capacity to make day-to-day and major decisions for your child, such as how and where to get medical care, what type of education the child should receive, and how to raise the child overall.”
If your child’s legal guardian is able to do both—take care of your child and their finances—then you only need to name one person. If not, you can choose a separate person to handle the finances of your child and your child’s day-to-day responsibilities.
The latter requires more effort, so you should make sure this person is fully prepared before naming them.
Megan Bray, founder of Bray Law Office and author of the “Considerations For Choosing A Guardian” chapter in the recently published WealthCounsel Estate Planning Strategies book, suggests asking a potential guardian these questions before naming them in your will:
- Does the person have the physical ability and energy to care for your children?
- Do they have the ability to emotionally support your children through an extremely difficult time?
- (For couples) Do they each have abilities that would contribute to the well-being of your children?
- Are their beliefs, including spiritual, financial and parenting, aligned with yours so that your children would be raised with a consistent message and in a way in which you are comfortable?
- Does their location allow your children to stay close or at least connected to their family, friends, school and activities or would your children have to make major changes in those areas?
The answers to those questions will help you determine if the potential guardian is a good fit or not.
2. Does the chosen guardian have any legal reasons why they can’t take on your child?
Guardians must be fit to raise your child in the eyes of the law. This means, they can’t have any convictions, serious crimes or family offenses such as child abuse, neglect and abandonment, according to Clark.
“Remember that guardians owe a fiduciary duty to the child, which means that they owe a duty of trust and they must act in a manner that furthers the child’s best interests,” he adds.
3. Are they family?
Bray tells Motherly that choosing a family member is a guardian can be “the best way to ensure that your children continue to see and be connected with their extended family.”
“Provided the relationships are fine, it’s much easier for a family member to make sure your kids are seeing their grandparents for the holidays when they are already going themselves,” she says. “It can take much more coordination and effort for non-family members to make those arrangements.”
There are other benefits as well. “It may be easier to ensure that your children are raised with a similar belief system, as it is typical in families that at least some of their beliefs are shared among the extended family,” Bray says. “In addition, if families live in fairly close proximity to each other, it may be easier for the guardian to receive assistance with babysitting and carpooling, etc. among family members.”
However, don’t feel like you have to choose a family member if you would feel much more comfortable naming a friend as a guardian. There is nothing wrong with that!
“You should only choose a close relative as a legal guardian if they’re ready to raise a child 24/7,” says Clark. “In fact, you can choose an adult sibling as a guardian. There’s a chance that the court will approve it. But, you still have to make sure that they can handle raising a child.”
4. Do their values, religious beliefs and political leanings line up with yours?
A difference in core beliefs can be major in the person raising your kids, so you’ll want to find out as much as you can about someone else’s values before asking them to be a legal guardian.
“It is extremely important for the potential legal guardian to have the same values or beliefs as you have so your child will be raised similarly to the way you would have raised them,” Clark tells Motherly. “Having this consistency will help the child carry on despite a loss.”
He suggests talking to a potential guardian about this before making it official “to find out if their values align with yours.”
“Discuss your wishes with them and let them be honest to avoid any surprises,” he continued.
Bray adds that the potential guardian is filling in for you. So if they have extreme political views or follow a different religion, you may want to choose someone else.
“The potential guardian is the person that will step into your shoes in molding your children’s values and beliefs if you are not able to do so,” Bray says. “It obviously depends on the age of the child, but the guardian may have a significant impact on the ultimate values and belief system of your children.”
She continues, “The values and beliefs of a potential guardian or their willingness to continue to encourage and share your values and beliefs with your children is commonly one of the most important considerations for parents choosing a potential guardian.”
5. Are they parents?
You may want to look for someone who is already a parent and has experience raising a child. Just be sure that those parents have the ability and the finances to take on more kids.
“It may be beneficial to your child if the named guardian is already a parent because there’s the assurance that they know how to love and raise a child very well,” Clark says. “However, it’s extremely important that you get to know them better to ensure that they are willing to raise your child.
Bray says, “Having other children could assist with adjustment of your children but having a number of other children could cause increased levels of stress.”
“When the potential guardian has children that are in different schools or activities than your preferred schools and activities, would the potential guardian be willing or able to manage both sets of school and activities?” she asks.
This is a very important consideration in a potential future guardian for your child and may change throughout time. You may name someone who is fine with being a guardian now, but you may want to check in with them periodically (especially if they’ve recently given birth) to see if they are still OK with being named a guardian.
6. Are they married?
Does it matter if your child’s guardian is married or not? This should be stated clearly in your will either way.
But keep in mind, Bray says a “family dynamic” is more important than a wedding license.
“It’s more important to look at the family dynamics of the potential guardian than whether it is a single- or two-parent household,” she says. “In many cases, parents would choose a stable single parent with one child of their own over a married couple that has had conflict and instability.”
And don’t forget that things could always change, which should be stipulated in your will as well. “A parent should also consider what they would prefer if something happened to one of the guardians or if the guardians later divorced,” Bray continues. “Would you want your children to become part of the guardians’ parenting plan or would you want only one of them to continue to act as guardian?”
7. Are they willing to keep your multiple children together?
You may find a seemingly perfect guardian for your kids—only to discover this person is only willing to take on one child. If you have more than one child and want them to stay together, make sure to specify this in your will as “this is an essential factor you should bear in mind,” according to Clark.
“If, for some reason, the court does not approve your choice of guardian or your chosen guardian can’t serve, but you would still like for your children to stay together with a different guardian as appointed by the court, make it a clear preference in your will,” he says.
A note from Motherly: How to choose a guardian for your child
Choosing a guardian takes a lot of thought and consideration (and potentially awkward conversations with loved ones), but it’s a vital part of parenthood. This is one legal move that you should set up ASAP to make sure your children are protected in the worst-case scenario.
Collen Clark, a lawyer and founder of Schmidt & Clark, LLP. Clark founded Schmidt & Clark, LLP to help injured individuals and families throughout the entire United States.
Megan Bray, founder of Bray Law Office and author of the “Considerations For Choosing A Guardian” chapter in the recently published WealthCounsel Estate Planning Strategies book. Founded by Megan E. Bray, Bray Law Office focuses on providing exceptional planning service to families with minor and young adult children along with families who have members with special needs.