If you have minor children or children with special needs, nominating a guardian in your estate plan is absolutely essential. By nominating a guardian, you have a voice in deciding who will raise your children if you pass away. If you pass away without nominating a guardian, you lose that voice. The court will independently decide who serves as guardian, which may result in an appointment counter to your wishes and what is best for your children.
What it Means to Nominate a Guardian
Nominating someone to serve as guardian for your children in your estate plan doesn’t guarantee that person will serve as guardian if you pass away. A judge from your local court will ultimately have the final say in who serves.
If you pass away and the child’s other parent survives, generally the guardian role will fall to that other parent, regardless of whether you are married to that other parent, unless there exists strong reason why that other parent is unfit to be guardian. If your child is over the age of 14, your child may also be able to block a guardian appointment that he or she finds undesirable and propose to the judge a different one. Nonetheless, nominating someone to serve as guardian is important because your nomination will figure highly in the judge’s mind. Your nomination creates a rebuttal presumption that that the nominated person should be appointed and the court should not disregard the nomination without good cause (Uniform Probate Code, Sect. 5-202).
Types of Guardians
There are two types of guardians:
- Guardian of the Person: handles child rearing
- Guardian of the Estate or Guardian of Property: handles the child’s finances
Often, the same person handles both responsibilities, but you can pick different people to serve as Guardian of the Person and Guardian of Property if you so desire. In fact, many people consider nominating different people to serve as Guardian of the Person and Guardian of the Property a wise decision, as the person who might best serve the child’s education, care, health, safety, and welfare needs may not necessarily be the best to manage their finances, particularly if you are leaving your children with substantial gifts.
Top 5 Criteria for Nominating a Guardian
You should consider these 5 criteria when considering your Guardian nomination:
- Values. Does the guardian share your values, religious beliefs, and outlook on life? Will the guardian be a good fit to raise your child as you yourself would raise them, and/or would you be comfortable with your child mirroring the guardian’s same values?
- Ability to act as guardian. Does the guardian have the time and the financial and emotional resources to support your child’s continued development? If you have multiple children, will the guardian be able to accommodate all your children so that they can stay together?
- Existing relationship with the child. Does your child already have a strong, healthy relationship with the guardian?
- Location. Does the guardian live near you so that your child can more easily maintain relationships with existing friends and networks? If not, do you think your child would be comfortable making a new start where the guardian lives?
- Financial Acumen. Does the guardian have a good grasp on his or her own finances and business dealings? Does the guardian understand and take seriously the fiduciary duties he or she will assume?
Bonus – Don’t Forget the Counter-Nomination
If your child has another natural parent or close relative who you would not feel comfortable assuming the role of Guardian, you should detail in plain-English your concern about why such person(s) would be an improper choice in your nomination of Guardians. Maybe this other person has repeatedly failed to provide child support or maintenance, treated the child or other children maliciously, and/or has had prior legal, substance abuse, or other issues.
At the end of the day, all the Court wants is to do what is in “the best interest of the child.” If you establish a clear and compelling argument about why a natural, ‘default’ guardian would not be a good fit and offer alternative guardian and successor guardian nominations who are in a much better position to serve, the judge will factor that in to the Court’s decision.
