Choosing Guardians for Minor Children – Part 1: How and When to Nominate

I am often contacted by first-time parents looking to set up an estate plan who have not yet considered or nominated legal guardians for their minor children.  These are some of the common questions these clients have.

1.  "What is the guardian responsible for?"

The guardian is responsible for providing caregiving and the legal responsibilities for the minor child.  This usually means the child will go to live with the guardian at the guardian's home, although I have had clients who make arrangements and provisions to allow the guardian to move in with the child so the child will have as little disruption as possible.  The guardian is responsible for ensuring that the child's medical, educational, and general well-being and developmental needs are taken care of.

The guardian is not necessarily responsible for managing any assets that may have been left for the benefit of the child.  If there are assets that have been left in trust for the benefit of the child, the trustee will be responsible for managing and distributing assets for the child.  In other circumstances, a conservator may be appointed for the child, whose sole role is to manage and distribute assets for the benefit of the child.  Both the guardian and conservator are Court-appointed positions which are overseen by the Court.  It is possible that the guardian and trustee, or guardian and conservator, may be the same individual, but not necessarily.

2.  "What happens if I die and do NOT nominate any guardians?"

The answer to this question depends on the status of the remaining family structure.  If the parents are married and one parent survives, the surviving parent automatically retains custodianship of the children.  This is also true for unmarried parents, as long as the surviving parent was the biological, adoptive, or adjudicated parent of the child.  For both married and unmarried parents, the surviving parent must also not have been found legally unfit or have some other legal impediment encumbering his or her ability to parent, such as incarceration or an abuse prevention order to protect the child.

If both parents are deceased, the minor child may have other relatives or close family friends who petition the Court to be appointed guardian.  If no one steps forward, the Department of Children and Families will step in, at least temporarily until a guardian is appointed by the Court, and in the event that no guardian is approved by the Court, the child may be placed in foster care.

3.  "How can I nominate guardians and how many should I nominate?"

The nomination of guardians is typically included in a Last Will and Testament, but could also be its own document.  I usually include the nomination in my clients' Wills.

For the number of guardians, in the event that neither parent survives, I usually recommend three alternates, which can be individuals or couples.  I recommend that my clients speak with the chosen nominated guardians to have a discussion about this role, and to obtain permission to include them in the list.  Sometimes clients only have one or two alternates; some clients have five or more.  While it may be extremely unlikely that so many alternate nominees are necessary, it provides peace of mind to the clients that they have done everything they could to ensure that in their children will be in good hands even if they are not there to take care of them themselves.

4.  "Should I ever change the nominated guardians?"

This is always a possibility.  I recommend that clients review their estate plans at least every 3-4 years, or sooner if there have been significant changes in the tax laws, the value of their assets, or a major life event, such as a marriage of birth of a child or grandchild.  The child who may be in need of a guardian is constantly growing and changing, and similarly the lives, parenting skills, and availability of the nominated guardians will also constantly change.

There are many factors to consider in choosing guardians, explored in more detail in Choosing Guardians for Minor Children Part 2, and these should be considered and reconsidered at each developmental stage of the child, or more frequently if the circumstances of the child and/or nominated guardians so warrant.

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