If you have minor children, then probably the most important decision that you’ll have to make with regard to your estate plan is who should take care of your children if you die while they’re still minors. In legal terms this is called a guardian or conservator of the person. Many of my clients in this situation are at a loss when trying to choose among family members and friends since each person will have pros and cons. This article tries to focus on the main points to consider when deciding who to name as the guardian of your minor children.

Many clients naively think that if they die, the person they choose as guardian for their children will pack up their bags and move right into the children’s home or buy a house in the neighborhood. This is really asking a lot from your guardian. What is more likely to happen is that the children will move in with the guardian if they have room and, if not, then the guardian will buy a larger house in their current location to accommodate their family and yours. So think about where the person you want to name as guardian lives and if you’re OK with your children being raised there.

You must also take the time to think about your own religious, political and moral beliefs and then think about what you know about the potential guardian’s religious, political and moral beliefs. If you don’t know much about the potential guardian’s beliefs, then you’ll need to ask because this is the person who you’ll be trusting to shape your children’s beliefs if you’re not around. And while it will be impossible to find a guardian who follows 100% of your personal beliefs, someone who follows 70%-80% is certainly a better choice than someone who only follows 30%-40%.

In addition to the above paragraph, if the potential guardian is already a parent, then you must consider their parenting skills. Is the potential guardian “hands on” with raising their own children or do they rely on outside help? Do you know the potential guardian’s views on child discipline, education, sports, and other school activities? Or, if the potential guardian isn’t already a parent, then consider what you know about how the potential guardian was raised since this will greatly influence how they will act as a parent.

The age of a potential guardian can cut both ways. On the one hand an older guardian may be in a better position financially and have more time to be hands on with raising your children, but on the other an older guardian may be out of touch with current trends in education and parenting and what kids today want and like. And there’s always the possibility that an older guardian may become ill or die before the children become adults. With a younger guardian, they may be too involved in getting their own career and family in order to worry about raising your children. This is also true for an adult sibling of a minor child – the sibling may be in college or beginning their career and not in the position to raise their younger sibling.

It is also important to think about the whether the potential guardian you choose is married with minor children, married with adult children, a single parent, married without children, or single without children. If married, then how stable is the marriage? If single, then is there a potential spouse or significant other on the scene? If the potential guardian doesn’t have any children, then is there the possibility of children in the future? If the potential guardian already has children, then how many do they have and what are their ages in comparison to your children? Considering the potential guardian’s family situation is the key to understanding how this can and will influence the upbringing of your children.

Another important matter to think about is the potential guardian’s financial situation.
Do you know if the potential guardian is good with managing money, has a stable job, has a spouse or significant other with a stable job, or where the potential guardian gets their money to pay the bills and put food on the table? Do you think that the potential guardian would have to quit their job or take on a second job to raise your children? As with considering the potential guardian’s family situation, considering the potential guardian’s financial situation is the key to understanding how this can and will influence the upbringing of your children.

Asking the potential guardian if s/he wants this responsibility is the right thing to do. If you don’t take the time to ask the potential guardian if they’ll be willing to act as your children’s guardian, then you may be setting your children and family up for a court battle if the person you’ve chosen doesn’t want to or simply can’t serve. This is not the time to be shy – your children’s lives are at stake, so you need to be upfront with the potential guardian and your other family members or friends. And if you’re worried about hurting someone’s feelings, don’t. What’s best for your children is on the line, so your choice of their guardian needs to be based on what’s really best for them, not what will make your family or friends happy.

Although the above factors seem like an overwhelming amount of points to consider when trying to decide who to name as your children’s guardian, the bottom line is that you’ll need to put the above mentioned points in order of priority for you and your children and then narrow down your selection from there. In fact, making an old fashioned “pros and cons” list should help in choosing the right person to act as your children’s guardian. And don’t overlook the importance of naming a backup guardian to your initial choice just in case they can’t or won’t serve. Otherwise it will be left up to a judge to decide who will be your children’s guardian.

Let us help you prepare for you and your family’s future. May we all merit living long, healthy and happy lives – amen.

The attorneys in the Trusts & Estates Practice Group at Yedid & Zeitoune have a combined 20 years of legal experience and are ready to assist you with all your estate planning needs.

Isaac Yedid, Esq. & Raymond Zeitoune, Esq.

Yedid & Zeitoune, PLLC 

1172 Coney Island Avenue Brooklyn, New York 11230

Phone: (347) 461-9800     Fax: (718) 421-1695    Email: [email protected]

NYC Office – By Appointment Only: