Absolutely. By doing so, you can ensure that the potential guardians have the same family values as you do and thus that your child will be raised the way you want him or her to be raised. It is imperative that you receive the consent of your child’s potential guardians before naming them in your estate plan, since no one can be forced to serve as a guardian for your minor child. Naming primary and successor guardians will greatly reduce the possibility of family feuds regarding your child’s care.
This is usually the most difficult question for couples to answer. Not knowing whom to select as a guardian is quite often the reason they put off estate planning.
Guardians are appointed by the surrogate or probate court judge. The judge will usually follow the wishes of the deceased parent, but the overriding concern of the court is the best interests of the child or children.
Factors to be considered in selecting a guardian are:
Although this is frequently done, it can be problematic. Most professionals would recommend that you name the child’s guardian as a cotrustee rather than sole trustee. Alternatively, you need not appoint the guardian as trustee in any form. You have chosen your child’s guardian because of his or her tremendous capacity for love and affection. The abilities which enable the guardian to nurture your child are not necessarily the abilities that make someone a good trustee. You want the guardian to focus exclusively on child rearing, and this is best accomplished by having someone else handle the financial matters. This approach will lessen the guardian’s burden and provide an extra layer of fiduciary protection for minor children who cannot protect themselves.
If you choose to name the guardian as trustee, naming a cotrustee to serve with the guardian will eliminate the chance of malfeasance. Just as important, a cotrustee reduces the chance that other family members will challenge your guardian’s motives when he or she is making expenditures on your child’s behalf. Some expenditures such as summer camp, sports activities, vacations, or home computers could appear to benefit the guardian as much as the child. A cotrustee can help the guardian determine the appropriateness of an expenditure and deflect the jealousies or well-intentioned meddling of family members.
Generally, the court will defer to your nomination unless the person designated is determined to be unfit (e.g., because of a drug or alcohol problem). The court may also designate someone other than the person nominated in your wills if there has been a significant change in his or her circumstances (e.g., divorce or a move to another state) since the nomination was made. The court may also give some weight to the wishes of your children, especially if they are old enough to participate in the proceedings.
HOW CAN WE PREVENT A CERTAIN RELATIVE FROM TRYING TO GET CUSTODY OF OUR CHILDREN (AND THEIR MONEY) IN THE EVENT OF OUR PREMATURE DEATHS?
You can specify in your pour-over will that the individual be ineligible to serve as guardian.
Some states now allow the appointment of a short-term guardian, who can be appointed by either parent of the child. The short-term guardian is authorized to serve as guardian immediately upon execution of the short-term guardian document, so there is no need to go into probate court and have a judge appoint the guardian. The short-term guardian usually may serve for a limited period of time, such as 60 days. Thus, parents can authorize a family member or friend to care for their minor children during the parents’ period of absence.
In states that do not allow for short-term guardians, parents should have their attorney prepare a short power of attorney that authorizes a relative or friend to act on behalf of their minor children if there is a medical emergency.