By Attorney Maria C. Baler
For parents of minor children, one of the most important reasons to create a Will is to name a guardian for your children if you pass away while they are still under the age of 18. A guardian is a person who will be appointed by the Court to have custody of your children. The guardian is the person who will make decisions regarding where your children live, where they go to school, and their health care. If one parent dies, there is no need to have a guardian appointed where there is a surviving parent unless that parent is unfit. However, if both of a minor child’s parents are deceased, a guardian needs to be appointed. Here are some things to consider when deciding who to name as guardian for your children
1. No One Will Be as Good as You
Choosing a guardian for your minor children is hard. No parent wants to imagine a world where they are not there for their children as they grow up. However, it is a parent’s job to keep their kids safe and well cared for, and naming a guardian is part of being a parent. It is your one opportunity to choose the person who will raise your children if you can’t. The first thing to remember is that no one will do as good a job as you. Don’t waste time lamenting that you can’t think of anyone that will be the perfect substitute parent for your children – there is likely no one like that. Instead, try to choose a person who shares the values that are important to you – whether those values are around education, religious upbringing, cultural traditions, etc. If your children are old enough, try to choose someone your children know and like and enjoy spending time with. You should also consider the age of the person you are naming and whether they will have the time and energy to be an active participant in your children’s lives until they become adults.
2. Considerations When Naming Married Guardians
If the guardian you have in mind is married or in a long-term relationship, consider whether you want to name both spouses/partners as co-guardians. This is appropriate if you would want both people to make decisions on matters concerning your children, and if you would still want either of them to continue to serve as guardian if the other passes away while your children are still under the age of 18. If only one member of a married couple is the person you want to be guardian, then name only that person as guardian. Your Will should specify who your choice for guardian would be if the first person is not able to serve as guardian for any reason.
3. Considerations for School-Aged Children
When my son was young, I knew that if something happened to my husband and me, I would want him to continue to live in our home and attend the same school he did when we were alive. This type of stability can be important in the aftermath of the death of a parent, especially if a strong support system exists in the community in the form of teachers, coaches, neighbors and friends. The older your children are, the more important this can be given longstanding friendships, sports and other extracurricular activities that your children would want to continue. If it is important to you that your children continue to live in your community and continue to attend school there, consider naming a guardian who would be able to move into your home and continue to live there with your children. If that’s not possible, consider naming a guardian who already lives in your community and who would take your children into their home to live.
4. Considerations for Divorced Parents
If you are a divorced parent of minor children, naming a guardian for your children is no less important. If one parent dies, the child’s surviving parent will be the child’s natural guardian unless it can be shown that the surviving parent is unfit. For many divorced couples who share custody and successfully co-parent their children, this makes sense, and each parent should create a Will naming the other as the primary guardian for their child, and an agreed-upon person as the alternate guardian if both parents are not living or are otherwise unable to act as guardian.
In situations where one parent feels the other parent is unfit to serve as guardian, it is important to make this clear. In your Will, you should name someone other than the other parent as guardian, and be specific that it is your wish that the surviving parent not be appointed as guardian for your child. It is not enough to just make this statement; you would need to leave documentation evidencing the reasons why the surviving parent is unfit. Document these facts in a document separate from your Will, share your knowledge with trusted people and with the Personal Representative you have named in your Will, and ask those people to come forward and share their knowledge if the surviving parent asks the Court to be appointed as guardian instead of those you have named in your Will.
5. Just Name Someone!
Naming a guardian for your minor child is one of the most difficult decisions you will make. Fortunately, it is unlikely that the guardian will ever need to step in, as it is likely you will live until your children are well past the age of 18. However, if you don’t, naming a guardian is arguably the most important thing you can do to ensure your child’s well-being. Despite its importance, I have seen many parents completely paralyzed by this decision – unable to agree on who they should name as guardian for their child. To these parents I say – Just Do It! Come to a compromise and name someone who is right for your children at this moment in time. As your children grow and change, a different person may be more appropriate, and your Will can be changed to name a different guardian at a later date. Naming someone is better than naming no one. If you die without naming a guardian for your children, the Court will have to choose among the people who ask to be appointed. And you know how that goes – undoubtedly, your least favorite sister-in-law will think she is the best candidate to raise your children and if no one objects she will get the job.
You know your children best, and know who you want to raise them if you can’t. So go ahead and make a choice. Get in touch with an estate planning attorney and create a Will that names a guardian for your children. That person will not be perfect, but it will be someone you have chosen. Naming a guardian now will also give you the opportunity to discuss things with the person you name, and create Letters of Instruction for them that describe your hopes and dreams for your children’s future. All of this will give your children the greatest chance of living their best life, even if it is without you.
Maria Baler, Esq. is an estate planning and elder law attorney and partner at Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and the current President of the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, visit www.ssbllc.com or call (781) 461-1020. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney.
© 2021 Samuel, Sayward & Baler LLC