Private Client Services Update - Protecting Your Most Precious Assets...Your Children

Often, when I meet with clients to discuss their estate plan, one of the most difficult decisions that they face is naming a guardian for their minor children. A guardian is the person or persons who are nominated in the Last Will and Testament of a decedent to provide for the care and custody of minor children in the event that neither of the natural parents survive until all of their minor children attain the age of majority. In essence, a parent is being asked to name a substitute for himself or herself to continue to raise his or her children in the extremely unfortunate event that he or she is not able to do so.

The nomination of a guardian can be a complicated decision for many reasons, including the advancing age of parents, the fact that potential guardians do not live in the immediate area and the lack of trusted and responsible family members and friends. Often because of having enjoyed a stable and nurturing childhood, a younger couple may be most comfortable nominating his or her parent(s) to serve as the guardian of their minor children, but they, at the same time, may be concerned that the responsibility of providing for the care of one or more minor children may become increasingly too demanding and burdensome for the elder family members as they continue to advance in age. Even if the financial assets are available to a guardian to provide for the physical and educational needs of a child, it can be physically and emotionally draining to manage all of the demands that accompany the daily living requirements of young children, including school schedules, extracurricular activities and hobbies, disciplinary issues, development challenges and obstacles, not to mention the emotional adjustment to the loss of the child's parents. Serving as a guardian can certainly be a daunting task for anyone, and may be even more of a challenge for grandparents.

There are many factors and questions for a parent to consider when tasked with nominating a guardian for his or her minor children. Although the decision is rarely an easy one, with any luck, evaluating potential candidates for a guardianship by applying these considerations may provide a clearer direction for parents facing this dilemma. Parents should ask themselves the following questions and carefully consider the candidates in light of their conclusions:

  1. Do your children have a good relationship with the guardian(s)? Your children should be comfortable around a potential guardian. They should be able to talk openly with the guardian and not be timid or hesitant to approach him or her with their problems and concerns. Since children can be intimidated by some adults, the guardian should be someone who relates well to your children and has a genuine love for them. Although a legal guardian is not required to be a family member, he or she is likely to be someone with whom you and your child spend a considerable amount of time and share common interests and values.
  2. What type of lifestyle will the guardian provide for your children? Consider the guardian's work schedule and career demands, religious beliefs and practices, disciplinary standards and behavioral expectations, educational preferences, general health condition, other responsibilities and the family dynamics of the guardian, i.e., the guardian’s other children and family members. You will likely be drawn to individuals who share your beliefs and prioritize their lives similar to yours, but there may be some critical differences that impact your decision.
  3. Where does the guardian live? It seems to be more typical for surviving children to move to the guardian's home and/or community, rather than the guardian relocating to where the children currently live. Children experiencing the loss of a parent are encountering extreme emotional loss and the affects of moving away from their community and leaving their school, classmates, teachers, friends and neighborhoods may add to their sense of loss. Parents therefore may prefer to name a guardian who lives close by or who is willing to relocate to their community without a tremendous amount of upheaval.
  4. Will the guardianship place a financial burden on the guardian? Although most parents plan to provide for the financial security of their surviving children through life insurance or accumulated wealth, that may not always be the case, and the financial demands of raising a child may deplete the assets left for a minor beneficiary before he or she becomes financially independent. Additionally, adding one or more children to an existing household will result in higher living expenses for items such as utilities, food and entertainment. A guardian may need to be prepared to supplement the funds available for the care of a minor child with his or her own assets if need be, without resenting the child or children who have been placed in his or her care. The guardian may or may not be the trustee of a minor child's inheritance. Therefore, he or she should be someone who can work well with a third party trustee in order to provide for the best interests of the minor child. The guardian should be someone who is willing to confidently speak on behalf of a minor child and demand that his or her wellbeing be of the utmost importance.

When nominating a guardian, it is best to name at least one alternate guardian to serve in the event that the primary designee is or becomes unable to serve in this capacity. Additionally, since circumstances are likely to change with the passage of time, parents should be vigilant in reviewing their estate planning documents as the circumstances may require. Finally, it is imperative that a parent clearly and frankly communicate their wishes and expectations to the individuals nominated as guardians in order to ensure that they are willing to assume the tremendous responsibility that may be required of them. It is no easy task, but recognizing the importance of providing for the protection and care of your most valuable assets, your children, by properly crafting and updating your estate plan as necessary is a endeavor that every parent should embrace.

Vonda Chappell is the managing partner of the firm’s Chesapeake office. Her practice focuses on trust & estate planning, commercial transactions including structuring corporations, limited liability companies, and partnerships. She also assists clients in residential and commercial real estate transactions.

The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances.


The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2017.

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