Choose the Right Legal Guardian for Your Kid
When our first child was born, my husband, Jon, and I did the responsible thing -- we drafted wills. Six years and two more kids later, they remained unsigned. The holdup: We couldn't agree on a legal guardian. I wanted my sister. Jon preferred his sister. Our discussions grew heated as we debated their relative maternal merits and the familial fallout of choosing one over the other. Ultimately, we avoided the topic altogether.
We're not the only ones. Whether it's due to a stalemate like ours or the unpleasantness of dealing with a hypothetical in which you and your partner die, 69 percent of Parents readers polled don't have a will. That's a scary figure. Couples who die without designating a legal guardian unwittingly leave the fate of their kids in the hands of a judge, who may be forced to designate a caregiver from among competing friends and relatives. And if no one steps up, your kids could wind up in foster care, says Candice Aiston, an estate-planning attorney in Portland, Oregon. Don't put off making this difficult decision even one day longer.
1. Define your ideal candidate. Write down a list of the values you and your partner share in raising your kids, suggests John E. O'Grady, an estate-planning lawyer in San Francisco. The qualities you rank most highly (such as generosity and kindness) should be the same ones you seek in a guardian. Consider the other factors you think are most essential for your kids, like excelling in school and being exposed to pursuits you love, such as sports and music.
2. Make a list of contenders. Once you've defined the qualities you'd like to pass on to your kids, think about the people in your life who are the best equipped to raise them. "Many parents feel duty-bound to choose a close family member, but you need to expand your scope for your child's sake," says O'Grady. A childhood buddy, a college roommate, or family friends you've made through your kids might be more in tune with your values and parenting style than a relative. Include them all on your list.
Then, consider whether each of your candidates is financially stable (raising a child isn't cheap, after all). However, if a couple seems perfect except for their economic situation, don't be too quick to cross them off your list. Investing in life insurance for you and your partner can help ensure that your guardians have the nest egg they'll need to raise your kids comfortably, O'Grady says.
3. Narrow the field. Now it's time to think about practical matters- -- location, age, health, and whether your candidates have the ability to take on more kids. There's no right or wrong way to rank these variables. Geography, for instance, may depend on the age of your kids. "A cross-country move won't matter to a baby or a toddler, but you'd rather not uproot school-age children from their friends and familiar surroundings," says Liza Hanks, author of The Mom's Guide to Wills and Estate Planning.
Try to arrange for your leading nominees to spend time around your kids -- or at least observe how they treat their own. If your brother-in-law freaks out over a dripping ice-cream cone in the backseat of his car, you might want to rethink his qualifications as a guardian. "I've gotten several calls from couples who decide to rewrite their will after a disastrous trip with a relative," says Hanks.
By now your candidates list should be winnowed to a few possibilities. If you've got a clear-cut winner, great. You're nearly ready to plan a romantic, kid-free getaway knowing that your affairs are in order. Skip ahead to Step 5. Otherwise, read on.
4. Break the deadlock. If your decision seems too confusing or momentous, lighten up. Although selecting a guardian is serious business, it's far from irrevocable. So if your adored first cousin gives birth to triplets or your designees move far away, making a change is simple and inexpensive. Bottom line: Pick someone! "There's not a person on this planet who's going to be as good at raising your kids as you are, but choosing someone is a whole lot better than choosing no one," says Colleen Barney, an estate planner and attorney in Newport Beach, California.
5. Make it official. Once you've determined who should raise your kids in your absence, make certain that the individual is willing and able to serve. Name only one person in the legal document as guardian at a time, even if you plan to designate a couple (couples may get divorced). Set up a meeting to chat in person or, if they live too far away, via Skype. Tell them why you've chosen them ("We love you and we think you'd bring up our kids in a manner that would make us proud"). Then give them some time to think it over. You're asking them to take on a weighty responsibility and don't want them to feel pressured into saying yes. Also be prepared for the possibility that they'll ask you to return the favor. "It is quite common for family friends with kids to pick each other as guardians," says O'Grady. Once they agree, it's time to put it in writing by visiting an estate-planning attorney. There's no need to inform dear relatives or friends whom you didn't choose. If you feel obliged to explain your decision, do so in a sealed letter that's opened only in the event of your death, advises Hanks.
I wish I'd followed this blueprint when Jon and I were going through the process. It would have spared us some hurtful conversations, not to mention years of guardian-planning purgatory. It took the sudden death of a close friend who had kids the same age as ours to make us realize the potential consequences of our continued inaction. We signed wills the week after the funeral. In the end, we chose each of our sisters: one to raise our kids and the other to serve as trustee and manage their finances. This arrangement can work well provided both parties get along (which they do), says Barney. It's a compromise Jon and I can both live with -- something we plan to do for a long, long time.
Originally published in the August 2014 issue of Parents magazine.