Parents do not like to think about needing a guardian for their children. Unfortunately, we have no control over the time of our deaths but we do have control over whether we plan for them.
A very important part of your estate plan is the nomination of a guardian for your minor children. If, before your death, you do not choose the person or persons you believe would be suitable guardians of your children, then after your death the judge is left to guess who you would want to care for your children.
The nomination of a guardian is a straightforward aspect of any family’s estate plan and is best made in your Last Will and Testament. It can be as basic or detailed as you want.
Here are 10 Tips to consider when selecting a guardian to nominate for your children:
- Make a Long List of Potential Guardians. When trying to identify the right people to serve as guardian, make your initial list of potential guardians very broad. Consider all of your extended family members, as well as friends and neighbors.
- Make a List of Possible Guardian Characteristics. Make a list of all the possible characteristics that your child’s guardian might have, and then rank the importance of those characteristics to you in light of your personal beliefs and your child’s needs.
- Rank the People on List #1 Using the Characteristics on List #2. Analyze each of the potential guardians in light of the personal characteristics that you deem important. You might be surprised to learn that a close friend is actually better suited to raise your children than your sister is.
- Once You Have Narrowed Your Choices Down, Talk to Them. While your sister may truly love your children, talk to her about the responsibility it would involve and make sure that she would accept if the situation arose. If you are not 100% confident that she would, add another person to your list of nominees so there will be someone to take her place should she decline.
- Nominate Only One Person at a Time. While it might seem to make sense to nominate both your sister and her husband as your child’s guardian, consider naming them one at a time. This avoids issues in the event they are not able to agree on a decision relating to your child.
- Nominate More Than One Successive Guardian. Consider that your first choice for a guardian might not be able or willing to serve at the actual time a guardian is needed. Name as many successor guardians as you are comfortable with, who would serve in the order listed.
- If You Nominate “In-Laws,” Consider Potential Life Changes. If you should choose to nominate your sister first and her husband second, consider whether you would still want him to serve if he and your sister were separated or divorced at the time of your death and instruct accordingly.
- Do Not Let Disagreements Between You and Your Spouse Stop You from Nominating a Guardian. If you and your spouse disagree, you should respect the other’s opinion but each prepare your own nomination. Should you die simultaneously; the court will simply have to decide which nomination is in the child’s best interests. This is far better than the court having no indication of what either of you wanted. Moreover, if the person nominated by your spouse is unable or unwilling at the time to serve, then that person will not even be considered.
- Consider Naming A Guardian of the Person and A Guardian of the Estate. Duties over your children’s care and their financial resources can be split between two different people if you believe that is in your child’s best interests to do so.
- Make Sure Your Nomination is Legally Valid. Florida law requires that persons being nominated meet certain legal requirements. The law also requires that the nomination of an initial or successor guardian be made in writing and witnessed by at least 2 credible witnesses over the age of 18, neither of whom has been nominated as the guardian. The best place to make this nomination is in your Last Will and Testament with the assistance of an experienced estate planning attorney.
Last Updated on April 18, 2017 by The Orlando Law Group
