Introduction

The appointment of guardians for minor children is one of the most important aspects of a parent’s estate plan.  If called to serve, the ideal guardian will oversee the upbringing of the child by providing a safe and loving home, serving as an adult role model, delivering supervision, encouragement and discipline as needed, attending to the child's social and intellectual development, helping the child through the trials of adolescence and beyond, assisting the child with educational and career decisions, and generally supporting the child on his or her path to becoming an independent adult.

Despite its magnitude, the guardianship provision of a Will is typically given short shrift by estate planners.  This article aims to correct that oversight by providing information and considerations for the counselor and client in the following areas:  (1) the differences in state law regarding the appointment of guardians, (2) factors a parent should consider in determining who should be named guardian, (3) the economics of the guardianship decision and (4) specific provisions that may be included in parents’ Wills to clarify the their wishes as to the upbringing of their child.

State Statutes

Thankfully, estate planners rarely see a guardianship provision put to use; however, the lack of practice in this area results in uninformed attorneys spreading misinformation and false realities to their clients.  For example, estate planners often “sell” their services to younger clients by stressing the importance of a Will to name guardians for the client’s minor children.  While there is good reason for appointing a guardian in a Will, it may come as a surprise to learn that the parent’s nomination is binding in only a few states.  In most states, the court or even a minor child of a certain age can overturn the parent’s decision.  It is important for the attorney to explain the applicable state law to clients when introducing the guardian concept.
 
State statutes generally fall into one of two categories.  First are the states that require court appointment and approval of the guardian, regardless of the appointment in the Will.  The statutes of these “court appointed” states typically provide that the court will give due regard to the request contained in a person’s Will, but will consider other factors, such as the relationship of the appointed person to the minor by blood or marriage (Arkansas, Florida), the workload, capabilities and potential conflicts of interest of the proposed guardian (Kansas), whether the appointed person and the parents share the same religious preferences (Pennsylvania) and whether an adult sibling is able to serve (Tennessee).
 
The second category of states provides that the person or persons appointed in the parent’s Will control.  Some of these “parent appointed” state statutes include a caveat that permits the court to reject the appointed guardian if it is not in the minor’s best interests.  In other states, the appointed guardians automatically receive “letters of guardianship” when the Will is probated, and the court has no say in the appointment of the guardian.  Time is of the essence in New York, as the appointment power shifts from the parents to the court if the Will is not recorded with the court within three months of the surviving parent’s death. 

Regardless of whether the guardian is court appointed or parent appointed, several states include the minor child in the decision-making process.  In many “court appointed” states, the court first considers the preference of a minor age 14 or older in appointing the guardian, and the guardian named in the Will is of secondary importance.  In many of the “parent appointed” states, a minor age 14 or older may object to the guardian named in the Will within a certain period of time.  Such an objection instigates a court proceeding to appoint the guardian – typically the guardian nominated by the minor child.  In some instances, a minor who was under age 14 at the time his or her guardian took office is given the power to remove and replace his or her guardian upon turning 14 years of age.  In Colorado, Connecticut and Texas, the age at which the minor is given a role in the appointment process is 12, rather than 14.
 
A divorced parent of minor children often wonders what will happen if the parents name different guardians in their Wills.  Most states’ statutes specifically provide that the Will of the last parent to die controls.  Unless the divorced parents coordinate their Wills, the client must contend with the uncertainty of his or her child’s upbringing in the event of the client’s premature death.  Even more frustrating is the situation where a custodial parent fears that a “deadbeat”, non-custodial parent will not make a suitable guardian.  Unfortunately, if the surviving natural parent is willing to assume custody of his or her minor child, the guardianship provision in the client’s Will is inoperative.
 
Guardian of Person v. Guardian of Property.  As a point of note, most state statutes provide for a guardian of the person and of the property for minor children.  The two roles can be filled by different persons.  If a client plans to place the child’s share of the estate in trust, the guardian of the property will have little to no responsibility.  The trustee of the child’s trust will serve as manager of the bulk of the child’s assets, whereas the guardian of the property generally will manage smaller amounts coming to the child outside of trust, such as gifts from relatives or earnings from the child’s personal work efforts.  The guardianship provision should clarify whether the person designated as guardian will serve as guardian of both the person and the property or whether the person appointed as trustee of the child’s trust will serve as guardian of the property.
 
Understanding the statutory framework of the guardianship process will lead to more helpful discussions with clients regarding who to appoint as guardian.  For example, if the attorney practices in a state where a child age 14 or older can overturn the parent’s decision, the attorney should encourage clients to discuss their choices for guardian with the child to ensure the child agrees with the selection.  In a state such as Kansas, where the court will look at factors such as the designated guardian’s workload, the clients may want to provide a stipend for the guardian in their Wills, with a statement indicating that the stipend is provided with the understanding that the designee will either quit working or work a reduced schedule while serving as guardian.  If the client resides in a court appointed state and is naming a non-relative as guardian, it may be helpful to include a statement in the Will as to why the non-relative is preferable to a blood relative, citing factors such as religion, location or shared parental philosophies.