Planning Considerations In Naming A Guardian For A Minor Child

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.
 
Considerations When Choosing a Guardian

Choosing a person or family to care for one's children is difficult. In fact, for many parents, it is the hardest part of the estate planning process.  It is not easy to think of anyone else, no matter how loving, raising one's child.  The decision becomes even more difficult when, as is often the case, spouses disagree as to who is best suited to serve as guardian.
 
To facilitate the decision-making process, the estate planning attorney should encourage clients to start with the longest possible list of potential guardians, and then whittle that list down to the few best candidates.  Once the best choices have been identified, those persons should be ranked in order of preference to establish the appointed guardian and successor guardians.
 
The field of candidates includes the child's siblings, cousins, aunts, uncles, grandparents and child care providers, and the parent's business partners, friends and neighbors.  If the clients would trust a person to parent their child, that person should be included in the initial list.  To help narrow the candidates to a select few, the following factors should be considered.
 
Age of Minor Child/Children.  The younger the child, the more crucial the choice of guardian is, because the child's natural parents may not yet have had the opportunity to instill their morals and values.  As the child grows older, the decision usually becomes easier.  The older child should have a voice in the decision, for starters, and geography will also play a role.  For example, for children who have already established roots in their community, the guardian should either be located in the same town as the clients or should be willing to move there.  If a child has just lost his or her parents, coping in a new school surrounded by strangers may be too stressful.  On the other hand, if the child is unhappy in his or her current environment, he or she may welcome the chance to start over in a new community.
 
Ability to Serve.  The guardian should have the ability to meet the physical demands of child care and should have sufficient "free" time to raise children.  The ideal candidate is someone who is in good health, energetic and close in age to the clients.  Nevertheless, many clients' first instinct is to name one of the child's grandparents as guardian.  The clients must consider whether their parents are too old to raise children a second time.  Particularly if the child is very young, the health and age of the potential guardian is an important factor.  It is difficult to imagine the emotional trauma that would ensue if a child lost both his or her natural parents and later lost his or her guardian.  Selecting a guardian from a prior generation only increases this risk.
 
One advantage to naming the minor's grandparent or grandparents often is availability.  A couple the same age as the natural parents may be career-driven and may not have the time or patience to deal with a grieving child, even if they mean well.  If the grandparents are retired or semi-retired and comparatively young and healthy, and the grandchild is at least close to adolescence, the grandparents may be able to provide the child with more time and emotional support.

Religion/Politics/Philosophy.  For some parents, religion is a matter of supreme importance, and for others, it is a much less important factor.  Nevertheless, most parents would prefer that their nominated guardian share their general religious preferences (e.g., Christianity, Judaism, Buddhism, etc.), but whether the guardian is Episcopal or Methodist may not be important as the guardian's level of spirituality.  For example, if the clients attend church and Sunday school each week with their children, it may be important to nominate a guardian with the same commitment to a religious upbringing.
 
For many parents, the child-rearing philosophy of the potential guardian is more important than religion, although the two concepts are often closely linked.  Ideally, the nominated guardian will shares the clients' values and principles regarding raising children, discipline, work ethic, education and financial values.
 
Guardian's Family.  There is no right or wrong answer when it comes to the question of whether the guardian should be single or married, or whether the guardian should have children or no children, but the unique family circumstances of each potential guardian should be examined.  If the client believes their child would benefit from more than one adult role model, it may be preferable to select a guardian who is in a committed relationship or married.  Typically, however, if the client wishes to name a person who is married to serve as guardian, it is best to list only one spouse of the couple as guardian.  Otherwise, if the appointed couple is divorced when the client dies, a legal battle for custody of the client's child may ensue.  If the client feels strongly about naming both the husband and wife as guardians, a solution may be to name one as guardian and the other as the alternate guardian if the first choice is unable or unwilling to serve.

Another common scenario is that the client's siblings are deemed acceptable, but the spouses of the siblings are less trustworthy.  Although the sibling may be the only actual guardian serving at a time, that guardian's spouse will undoubtedly have a significant role to play, if not a legally recognized one.  Thus, an unacceptable spouse may disqualify an otherwise desirable choice for guardian.
 
Where the potential guardian already has children, the client must consider whether the potential guardian has the emotional and financial ability to add to his or her "brood".  It can be fairly predicted that, at a minimum, the arrival of one or more new children in a household will be a hugely unsettling event, both for the guardians themselves and any minor children of their own.  Nevertheless, where a potential guardian already has children, the client is better able to judge such person's parenting philosophy and usually is reassured that the potential guardian has a real interest in raising children and a commitment to doing so.
 
A question for the parents who have quite a number of children (say, three or more) is whether the children should be split up and sent to separate homes.  Practical difficulties may effectively require that result.
 
Other Factors.  Although it should go without saying, the potential guardian ideally will have maturity, patience, integrity, and positive social and moral habits and values.  The potential guardian should show no signs of abusive or addictive behavior or other self-destructive tendencies.
 
Speaking of moral values, in some cases the minor child's own older siblings may be considered a potential guardian. This possibility has become increasingly rare in an age of smaller families, as there is less likelihood of a significant age differential between the oldest and the youngest children, but it can be a good solution in the right circumstances.  Nevertheless, one concern regarding such an arrangement is the degree of the older sibling's moral authority, but this factor should be easy for the parents to assess.
 
Willingness to Serve.  Most importantly, the potential guardian should be consulted to determine his or her willingness to serve.  The person asked may want some time to think it over, as guardianship is an enormous responsibility.  If the potential guardian is willing to serve, the client should be encouraged to have a frank discussion with the prospective guardian to make certain that he or she respects and agrees with the client's views on parenting.

If the client's choice of guardian declines the offer, the client should respect that person's wishes and look for someone else.  A declination to serve should not be viewed as an insult; rather, the person who declines guardianship is showing respect for the client and the gravity of the request by providing an honest answer.

Nominated guardians, once they know how strongly the client feels about their loving and good characters, may choose to become more involved with the client's children.  So long as the appointed person loves the clients' child and wants to serve, the clients should be able to rest easy in their decision.
 
Summary.  Some of the factors listed above can be influenced by the client and others cannot.  It is important to select a guardian who has the characteristics that cannot be controlled by the client, such as good health, maturity, integrity, patience and willingness to serve.  A potential guardian should not be ruled out, however, for reasons that the client may be able to control, such as finances, work schedule or the size of their home.  Ways the clients can influence these factors will be discussed below.
 
For some couples, naming a guardian is fraught with conflict.  The most common level of competition for the office of guardian is between the husband's sibling or parents and the wife's sibling or parents.  It is important to keep both sides of the clients' families involved.  One way to compromise may be to name members of one family as guardians to care for the children, and members of the other family as trustees, to manage the assets for the children.

Economics

Assuming the clients are financially stable and/or well insured, potential guardians should not be eliminated from the list for financial reasons unless they lack basic money management skills.  Guardians are not legally obligated to support their wards out of their own pockets.  Although public benefits may be available, part of the client's estate planning should be to ensure both the child's and the guardian's material well-being.  The attorney should help the clients assess whether, after the clients' debts, taxes and expenses of administration are paid, sufficient assets will remain to provide a stream of income that will support both the child and, if necessary, the appointed guardian.  If there is an anticipated shortfall, the attorney should encourage the clients to purchase additional life insurance through a life insurance trust.
 
Providing for the Child.  Typically, the client's Will and/or life insurance trust will provide that the funds to be used for the benefit of the client's child or children be placed in a separate trust until the child (or the youngest of all the children) reaches a certain age.  The terms of such trust should provide, at a minimum, that distributions of the trust net income and principal may be made for a child's health, education, maintenance and support, but may also allow distributions for travel, camp and other extracurricular activities while the child is a minor. 

Providing for the Guardian.  The client should also consider whether the guardian will need financial support.  In many cases, significant economic issues will arise for the guardians at the time they are called upon to assume their duties. Obvious areas of impact will be housing, childcare and general household expenses.  The client should consider permitting the Trustee of the child's trust to make distributions of net income and principal to (a) add living space to the guardian's residence or purchase a larger residence to accommodate the guardian's enlarged "family", (b) purchase additional furniture or furnishings for the larger residence, (c) subsidize a change of career or employment to facilitate that person's serving as guardian or (d) employ childcare providers, housekeepers or other support to enable the guardian to balance a career and the responsibilities of serving as guardian. 

Another issue which may arise is a disparity in economic position between the client's child and the guardian's own child.  At very young ages, the issue is not apt to present a problem, but as children grow older and have opportunities for elective social, educational or travel experiences, such disparity may prove awkward and uncomfortable.  Clients should consider permitting distributions from the child's trust to enable the guardian's children to have the same privileges as the client's child. 

If the client has agreed to provide for the guardian and/or the guardian's family out of the child's trust funds, the client should consider the interplay between the guardian and the trustee.  Clearly, the client's primary purpose in creating a trust for his or her child is to provide for the child's support and education.  If there is any question that the guardian might misappropriate trust funds for his or her benefit, squander the child's trust funds on frivolous purchases, make poor investment choices or neglect the management of the trust funds, then the guardian and trustee should be different persons.

Considerations in Drafting

At a minimum, the guardianship provision in a client's Will should appoint a guardian, successor guardian and, if appropriate, waive the guardian's responsibility to post bond.  The counselor and client should discuss whether any additional provisions might be included, such as permissible distributions to the guardian and/or the guardian's own children, provisions for the guardian's residence, distributions to the child's family members for visitation, and any written wishes regarding the child's upbringing, such as religion and education. 

Appointment of Guardians and Successor Guardians.  Once the client has settled on who should be named as guardian, thought should be given as to the order of nominations, and whether any conditions will be placed on a guardian's appointment.  As discussed above, the client must consider whether to name a married couple, together or the survivor of them, or one spouse from the couple at a time.  Where the client is naming a married couple, another consideration is what happens if that couple is divorced at the time of appointment?  Should the next couple in line serve, or should the husband or wife of the first-named couple serve alone? 

It is possible to place conditions on the guardian's appointment; however, there is no guarantee that these conditions will be enforced.  Typical conditions require the appointed guardian's agreement to move to the client's location or raise the client's children in a certain religion.  For example, if a client has decided to name her sister as the first guardian, but that sister lives on the opposite side of the country, the client may condition her sister's appointment on her agreement to move to the client's community.  If the sister does not agree to move, then the successor guardian will serve. 

Financial Provisions for Guardian.  As discussed above, the clients may wish to express an intent in the guardianship provision that the guardian not be obligated to take on significant financial burdens as a result of his or her undertaking to serve.  To effectuate this intent, the clients may authorize the trustees of the child's trust to pay any expenses of the guardian that he or she would not otherwise incur but for the fact that the person is serving as the guardian.  For example, the trustee may be authorized to pay for housekeepers or any other personnel necessary for the maintenance of the guardian's residence or for the purpose of providing assistance to the guardian in connection with his or her duties.  In addition, if the guardian has children of her or his own, the client may authorize the trustees to pay for all or a part of the costs incurred by both the client's children and the children of the guardian for vacations, lessons and other "extra-curricular" activities, so that the client's children and the children of the guardian are raised, to the extent possible, in the same manner and with the same benefits.

Guardian's Residence.  As discussed above, in order to enable the appointed guardian to serve, the clients may find it necessary to provide financial support to the guardian.  The clients may authorize the trustees of the child's trust to retain the clients' principal residence for the use of the guardian, the guardian's family and the clients' children, without any obligation to pay rent or other carrying costs.  The clients also may authorize the trustees to provide financial assistance to the guardians to construct an addition to the guardian's principal residence or to contribute to the purchase of a larger home.  The clients may also state their preference that both or all of the clients' children have the same guardian and reside in the same residence, and, if keeping the client's children together creates a financial hardship for the guardian, permit distributions from the children's trusts to reimburse the guardian for the extra costs and inconvenience. 

Visitation.  If the clients had a difficult time deciding whether to appoint a guardian from the wife's side or the husband's side of the family, it may be comforting to the "losing" parent if the practitioner suggests adding a visitation provision.  A visitation provision might explain the clients' intent and conviction that the child spend time with both sets of grandparents and all aunts and uncles, at least once a year.  The provision might direct the guardian to make any arrangements necessary to accomplish the client's intent, and it might also authorize the trustee of the child's trust to pay any expenses that may be incurred, including the cost of any domestic and/or international travel for the child to visit a relative, or even for the relative to visit the child.  A visitation provision can be particularly helpful where the extended families of one or both parents live abroad.

Written Wishes.  The client may wish to provide detailed guidance to the appointed guardian about the client's children and the sort of experiences and family environment the client would like for them.  Any values about which the client feels very strongly should be made explicit in written instructions to the guardian.  Such instructions may be included in the Will or in a separate writing, but should be precatory in nature and not binding. 

Bond & Compensation.  Typically, the client should state that the guardian may serve without bond or other security, and without any obligation to file annual reports, statements or accounts to the court.  A few states, such as New Jersey and Nevada, require the guardian to post bond unless the Will provides otherwise, which makes such a waiver all the more important.

Several states provide for compensation of the guardian, whether the Will authorizes it or not.  The majority rule, however, is that the Will must specifically authorize compensation in order for the guardian to be entitled to any portion of the clients' estate or the income therefrom. 

Conclusion

Perhaps the reason estate planners shy away from discussions about guardians is the intensely personal nature of the parents' decision as to who should be appointed.  While this decision is the clients' to make, there is much the attorney can do to assist the process.  The attorney should (i) help the parents understand the statutory framework regarding guardianship, (ii) suggest factors for the clients to consider in naming the most appropriate guardian, (iii) appreciate the interrelatedness of the trustee and guardian as to the economics of the guardianship decision and (iv) facilitate conversations and draft provisions setting forth the clients' wishes and desires as to the upbringing of their children.  There is no perfect guardian for a minor child - only the child's parents can hold that title.  Nevertheless, clients should feel confident in their selection of a guardian and the attention and care put into the guardianship provision of their Wills.