Choosing a guardian for minor children can be simple for some and a much more difficult process for others. I’ve see some people start the estate planning process but take months (or even years) to implement it because they couldn’t decide who to name as guardian for children. Here are some tips to help.
Why is it’s Important?
If you pass away with minor children, and there isn’t a surviving parent, a guardian will need to be appointed. If you did not designate a guardian, someone will need to petition the probate court to become guardian for your minor children. This takes time and can create conflicts where more than one person petitions to be the guardian. Your children could be temporarily put into foster care until a guardian is eventually appointed. And the guardian who is appointed may not have been who you would have wanted. It is far better for you to nominate a guardian during your lifetime You will to save your children and family time, cost, potential fights, and emotional challenges.
How to Name Guardian for Minor Children.
Utah law allows you to appoint guardian for minor children in a Will or in other written instrument. It is most common for people to name a guardian in a Will, but it can be in another writing. There is no requirement that the instrument be typed, but it must be signed and dated by the parent(s) and the document with the latest date will take precedence. While I recommend that everyone implement their Foundational Estate Planning, you can always appoint a guardian in a separate writing. Click HERE to download a free sample form for appointing a guardian.
Who Should You Choose as Guardian?
You should choose someone who you believe shares your values and philosophies to the extent possible. This is usually where people have a tough time choosing someone. When choosing someone, remember these tips:
- You can always change it. It’s simple to update who you’ve named as guardian. Do the best you can now. You can change it anytime you want.
- It’s better to name someone than not at all. Remember, we want to avoid the challenges of not naming anyone.
- We plan for the worst and hope for the best. Even though we name guardians, it doesn’t mean that something bad is going to happen. Our children will only need a guardian if they are under 18. This is a short window of time and it is more likely than not that your children will not need a guardian.
- Consider naming an individual (rather than a couple). Yes, you can name your married sister as guardian, but rather than naming her and her spouse as a couple, consider naming only your sister. If they are divorced or if she passes away before you, you may not want her spouse to be the guardian. Rather, you could simply name your sister’s name individually. Or if you name a couple, you could condition it on them being married, otherwise it goes to the alternate guardian named.
Should You Ask Them First?
I generally recommend that you do not tell the person you’ve nominated as guardian. You know why you chose that person. You wouldn’t choose someone that you don’t trust to take the responsibility. It is not required that they agree to it in advance. If you may change your mind and want to remove them and appoint someone else it could create an awkward conversation or hurt feelings. And, it is more likely than not that you will live long enough for your children to reach adulthood. Instead, I think it’s perfectly appropriate to quietly name your guardians and keep the document (along with your other estate planning documents) where someone will find it if you pass away. That said, it’s always up to you. You can discuss it with them if you choose.
Better to Choose a Guardian Now
I hope these tips are helpful. Remember, it’s better to choose a guardian now for minor children and name them in your Last Will and Testament or in a separate writing.
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