One of the most important decisions for many of my clients is the selection of a guardian for their minor children. There are many factors that should be considered when appointing a guardian.
First, I recommend that families think broadly about all of the available people who could be guardians. It often helps to think like a court would think: Who are the children related to? Grandparents? Aunts and uncles? Adult siblings? Then broaden the circle and look to your friends and neighbors.
At this stage, I also recommend thinking about two different sets of potential guardians: the first are "permanent" guardians, who would have custody of your minor children if you pass away or are permanently incapacitated; the second are temporary guardians who could assume custody of your children during any temporary period of incapacitation. Imagine that you are in a serious car accident on date night. Both you and your partner are rushed into surgery. While you are in serious care and likely to survive, someone else will need to watch your children that night and perhaps for a few nights. Unless you have directions about who is authorized to take custody of your children in your wallet, the hospital social worker may be scrambling to find someone -- especially if your family lives out of state. A list of neighbors or local friends who are willing and able to temporarily care for your children in an emergency is a critical part of your guardianship planning.
Now that you have two lists, the next step is to consider what values are most important to you for each group. For permanent guardians, some of my clients prioritize familiarity with the children and genetic closeness. Others prioritize the age of the guardians, their religious beliefs, and their financial resources. I highly recommend discussing this list with your co-parent, as many disagreements as to whom the best candidates are can be alleviated by focusing on which values you want to prioritize together for your children.
Third, compare your first list to your value set. Some clients even create a grid where they can objectively compare which possible guardians meet all of the values and which do not. Once you have applied your values to your list of all possible guardians, and after discussing with your co-parent, you can select your guardians for both permanent and temporary appointment.
And then you can select your second and third choices. While you may be certain that the first person you list will agree to serve, unexpected circumstances can arise between now and when the appointment would take effect. The people you nominate always have the option to decline should the agreement need to be in effect.
To that end, when you think about your back-up guardians, also consider whether you want to nominate an individual rather than a couple. While many of my clients name married couples as guardians, this can pose a problem if the couple should divorce or if one partner dies before the the guardianship begins. Do you only want the couple to serve as guardian jointly? If so, be sure that your intent is clear in your appointing documents.
One last piece of advice: it is always a good idea to talk to your potential guardians before naming them. Let them know why you would like to name them and what's most important to you in raising your children. Be sure to discuss any concerns they might have, and discuss these with your attorney. Guardians may be hesitant for financial reasons, and knowing that there will be a minor trust for your estate and how that can be used may ease their concerns.
But more about that another day.