Choosing a Legal Guardian For Your Child: Everything Parents Need to Know

It's one of the most difficult choices new parents have to make. It's also crucial.

by Adam Bulger

Choosing a legal guardian — the person, or people, who, in the event of you and your spouse’s deaths, will take care of your children — is one of the most difficult decisions parents must make when writing a will and planning their estate. It confronts you with not only uncomfortable truths about your own mortality (and the idea of your children making their way without you) but also about the people in your life and whether or not you think they’re capable of such an important, life-changing task. But it’s essential that parents make the choice.

How to Choose a Legal Guardian For Your Child

Legal guardians are designated as part of your last will and testament. They are responsible for caring for a child if both parents pass away, become ill, or in a major accident. Much like the parents themselves, they are tasked with caring, providing, and raising children until they are at least 18 years old. They must make decisions on behalf of the child and ensuring that the child is healthy, protected, and loved.

Given the enormity of the task, there are many questions parents need to ask when deciding on a legal guardian for their children. But they more or less fit into these two categories.

  • What Are Their Values?

That is, what do you care most about for your children? What morals do you hold highly? Empathy? Kindness? What about religious values? Do you see education as one of the most important things for your kids? What about music or other creative pursuits? Et cetera. A guardian should, ideally, be someone who aligns with the values you want for your kids. No one will dovetail perfectly, but it’s important to find people who can uphold what you prize most dearly.

  • Is This Person Truly Capable of Taking Care of Children?

Ideally, you want a guardian to be someone with a connection to your children. But age, health, lifestyle choices, and such issues as emotional stability are important considerations as well. Your kids may love your parents or in-laws but their age could keep them from being people you’d be comfortable taking care of your kids for a decade or more. Another relative might be young and financially secure but you might doubt their child-raising skills or philosophy.

“This is the one area in which you’re entitled to be judgmental,” says Jeffrey Knapp a New Jersey estate planning attorney who has 30 years of experiencing helping clients through big decisions.In other words, don’t pull punches. If you think your sister is a religious kook and your brother-in-law’s a flake, say it. Your kids’ future is more important than being diplomatic.

Other questions to consider: If the prospective guardian have children of their own, will your children fit in with them? How far away do they live? Are your children comfortable with these people? It should also be noted that finances shouldn’t really factor into the decision, as insurance policies and holdings designated in a will should be enough to help them take on the responsibility of caring for your child.

Of course, assessing candidates will differ with parents. Regardless, psychologist Alli Kert says it’s important to consider both practical and philosophical concerns. And if you don’t have one person with all of the attributes you’d like, it’s fine to split up guardianship duties among several candidates

“You might not have the unicorn in your family that has all of the elements,” Meredith Stoddard, Vice President and Life Events Experience Lead at Fidelity Investments, says.

For example, parents can distinguish between guardians of the estate who are designated to handle your children’s money and assets and guardians of the person, who’ll care for the children.

“That can be a really good idea if you have a spendthrift relative who is a wonderful person who just doesn’t know how to handle money,” Stoddard says.

If you feel there’s no one who can oversee your children’s financial future as well as you, you can establish trusts for your children and stipulate how they’re distributed.

“The great thing about a trust is it allows the parent to continue to sort of control the assets even if they’re no longer here,” says Brent Wess, a financial planner with Maryland-based financial advisement group Facet Wealth. “You can specify how the income can be distributed to your children if you’re not around.”

Choosing a Legal Guardian: Why It’s So Difficult

If you haven’t designated a legal guardian for your child, you’re not alone. A large swath of parents avoid will writing, choosing a guardian, and other such necessary estate planning details. In fact, a recent survey found that almost 80 percent of Americans between 18 and 34 haven’t prepared a will and only 62 percent in the 35 to 44-year-old age group have one.

The reasons why parents put off deciding who will care for their kids after they die are understandable. And while there is no hard deadline for picking a legal guardian. It’s a choice predicated on two painful thoughts: your own mortality and the idea of your children living without you. To decide, you must think seriously about the family and friends closest to you and, almost certainly, argue about who’s the best person to raise your kids.

“Creating a will and designating guardians for our children are challenging life decisions that will likely generate painful imagery and conflicting opinions,” says Kert. But while avoiding a difficult task offers fleeting relief, the guilt and anxiety only grows the longer you avoid it. “A small step toward our goal, like contacting a lawyer or sitting down with our significant other can help set us on the path to completion and ease any anxiety associated with it.”

As painful as that process of choosing a guardian might be, the prospect of you and your spouse dying without knowing what will happen to or who will take care of your kids is far worse. If you don’t decide who’ll take care of your kids while you have the chance, a judge who’s never met your kids or your family before will make that decision for you.

The good news, however, is that the process of choosing a guardian is less stressful than many might believe. Once it is complete, it gives you not only control over your child’s future and wellbeing, but also some well-deserved peace of mind if the worst comes to pass.

Choosing a Legal Guardian: Issues That Arise

Couples often give up on choosing a legal guardian for their children when they can’t come to a quick decision, says Knapp. “The biggest obstacle is that when parents start talking about guardians and they don’t completely agree, then put it on the back burner,” he says.

When choosing a legal guardian, it’s impossible to make a perfect choice. After all, you and your spouse are the best people to raise your kids. But accepting that any guardian won’t be able to understand or love your kids as well as you is an important early step in choosing a guardian. Knapp recommends beginning conversations about choosing a guardian by saying, “Let’s acknowledge that nobody else would do as good a job as you would with your kids. Nobody would do quite the job you would.”

Once parents understand that any choice of a guardian is a compromise, they can start weighing their options. “I say ‘let’s talk about the talent pool here,’” Knapp says. “It always works out.”

If you and your spouse really can’t agree on a guardian, it’s helpful to remember that while establishing a guardian is an important choice, it’s not a permanent one. You’re allowed to change your mind. As Knapp often tells clients, he and his wife changed their children’s guardianship designation several times.

“You make your best current choice knowing that it’s not engraved in stone,” Knapp says, adding that he routinely advises clients to create lists of preferred candidates, designating a-teams, b-teams and so on. “They need to consider the possibility that one half of the a-team is taken away either by death or disability or something that compromises or prevents them from doing the best job.”

Choosing a Legal Guardian: Making the Choice

Before it’s set in stone, it’s extremely important that you tell your prospective guardian that you would like them to care for your children in the even of your deaths. This is a big task and requires time to think over.

Once a guardian says yes, you simply speak to an estate lawyer and sign the paperwork designating them legal guardian in the event of your death. It’s often commonplace for parents to compose a letter to them that explains they were chosen. This can include your thoughts on your children’s schooling, religious faith, or other matters of importance as well as heartfelt thanks. It’s also common to write a letter to your children as well.

“I’ve had colleagues who’ve lost parents when they were in their early teens or something and said it made a big difference when there was something like that to look at,” Knapp said.

Another crucial step: Making your intentions for your children known to your family. This is an essential failsafe if your legal documents are destroyed or lost after your death.

Helping Children Move On When You’re Gone

With their parents gone, your children will almost certainly struggle to cope with an almost unimaginable sense of loss. From her years of helping children cope with just that, grief recovery specialist Lisa Athan says the best values guardians can provide are reassurance and day-to-day continuity.

“What we know about grief is the less disruption to a child’s routine and life the better,” Athan says.

Adults sometimes want to make a clean break after big changes in their lives, like moving to a new city after a divorce, but kids crave stability in periods of dramatic and wrenching change. In light of a parent’s death, getting to school and soccer practice like normal might not seem like a big deal. But that steadiness, per Athan, can be critical to a child’s ability to process grief.

“I have heard of cases where the person came and lived in the house and stayed with the kids,” she says. “It doesn’t always happen. Sometimes that would be ideal because then the child’s whole life’s not changed. Their school, their neighborhood, their home.”

Athan says it’s important that parents designate someone to take care of their kids immediately after their deaths, a person who could drop everything in their life and come take care of the kids immediately. “And then who would be the guardian? Those can be two different people.”

There’s no other away around it: Choosing a guardian is an enormous decision. It’s also a crucial one. But the sooner you handle it, the easier your life will be — and the better you’ll feel about your children’s well-being if the worst happens.