No one will ever be you or parent exactly like you. More than likely, however, someone you know could do a decent job providing for your children’s general welfare, education, and medical needs if you can no longer do so. Parents with minor children should name someone to raise their children in the event both parents die or are otherwise unable to care for them before the children become adults. While the likelihood of you and the children’s other parent both passing away or becoming unable to parent your children is slim, having a plan in place is always preferable to not.

We know it is difficult, even horrific, to imagine someone else raising your minor children. However, part of a robust and comprehensive estate plan will ask you to consider who you would choose to fill this important role. While this can be a daunting decision, the alternative (i.e.- doing nothing) can often result in a probate judge making the decision on who will raise your children.

While each states’ laws vary slightly, the majority follow a hierarchy centered around that is in the best interests of your children. Usually this involves a family member (surviving spouse, adult children, your parents, or your siblings) being called first. In rare instances, the court may also sometimes name a formal service or stranger to act as guardian. This usually only occurs when no suitable family member may be found. Below are some things to bear in mind as you determine the best person to name the guardian or guardians of your minor children.

How to Choose a Guardian for your Minor Children

Your minor children’s guardian can be any individual you feel comfortable with, whether they are a relative or friend. Here are the factors our clients have considered when selecting guardians (and backup guardians).

• How well the children and potential guardian know one another and whether they enjoy spending time together
• Parenting style, moral values, educational level, health practices, and religious or spiritual beliefs
• Where the guardian lives; if it is far away, your children would have to move from a familiar school, friends, and neighborhood to a new and unfamiliar location
• The age and health of the guardian-candidates:
  • Grandparents may have the time but not the energy to keep up with a toddler or teenager.
  • An older guardian may become ill or pass away before a child is grown, so your child could potentially face the loss of an additional parental figure.
  • A younger guardian, especially a sibling, may be too focused on establishing their own lives, especially if they are finishing college or starting a career.

WARNING: Serving as guardian and raising your minor children is a big deal; do not spring this responsibility on anyone without speaking with them about your expectations and ensuring they are willing and prepared. We encourage you to ask your top candidates if they would be willing to serve, and ensure you name at least two alternates if your first choice cannot serve.

Who Is in Charge of the Money When Dealing with your Minor Children?

Raising your children should not be a financial burden for the guardian, and a candidate’s lack of finances should not be the deciding factor. Ideally, you can provide enough money (from your accounts, property, and life insurance) to provide for your children after you pass away. Some parents also earmark funds to help the guardian buy a larger car or house or build an addition onto their existing home so there is plenty of room for taking on the responsibility and addressing the needs of extra children. These can be outlined as part of a comprehensive estate plan that you create with your attorney.

Additional Factors to Consider When Deciding Who Manages the Minor Children’s Money:

• In some circumstances, naming a person separate from the guardian to manage your children’s inheritance may be a good idea. That person would fill the role of your successor trustee and manage the money and property set aside for the children in a trust designed for them. The guardian would be responsible for the day-to-day raising of the children.
• Under appropriate circumstances, having the same person raise the children and handle the money can simplify things because the guardian would not have to ask someone else to make distributions for the children’s benefit.
• In some situations, the best person to raise the children may not be the best person to handle the money, and it may be tempting for them to use this money for their own purposes. So, dividing the responsibilities may be particularly beneficial and avoid the misuse of any money you leave for your children’s benefit.

Let’s Continue This Conversation

We know thinking about death or your potential inability to care for your child is not easy, but do not let that stop you from creating a proactive plan to address the unexpected. We are happy to talk this difficult topic through with you and legally document your wishes so that they are enforceable at your death. Understand that you are not bound to your initial selection and can change your mind and select a different guardian at any time. The chances of actually needing the guardian to step in are usually slim (we always hope this is the one nomination that is never needed). However, your job as a parent is to provide for and protect your minor children, so begin to plan and contact us here. Nielsen Law PLLC provides family-focused estate and business planning to individuals and families in Austin, Round Rock, Cedar Park, and the Central Texas area. We look forward to working with you.