People often confuse the concept of a will with the idea of “legal guardianship.” A will and guardianship are two different legal concepts, but because a will often names a legal guardian for a minor child, they are closely associated with each other. In this article, we’ll explain the relationship between a will and legal guardianship and give you the information you need to choose a legal guardian for your children.
What is Legal Guardianship?
Legal guardianship refers to a legal arrangement where a person (called the guardian) is appointed by the court to take care of another person (known as the ward) who is unable to care for themselves. Guardianship is usually established for minors or for adults who are incapacitated in some way, such as due to mental illness or disability.
A will is simply a legal document that outlines how a person's assets and property should be distributed after their death. However, the will can also appoint a guardian for any minor children the person has. The guardian is responsible for making decisions related to the ward's care, including their living arrangements, healthcare, education, and overall welfare.
Obtaining legal guardianship over an adult is a topic that is much more complicated. For the purposes of this article, we’ll limit discussion to guardianship over a minor.
How is a Will Different from Guardianship?
A will is a legal document that outlines how a person's assets and property should be distributed after their death. It dictates who should receive the person's property and assets, how much they should receive, and when they should receive them. A will can also appoint an executor to manage the distribution of assets and property according to the person's wishes. In addition, a will can name a guardian for minor children, but this appointment is only effective after the person's death.
Can a Guardian Also Serve as Executor of the Will?
You might be wondering if the same person who is appointed as a legal guardian for minor children may also be named as the executor of a person's will. The answer is yes. Many couples prefer this arrangement because they would like their surviving spouse to administer their estate and take custody of minor children. However, you aren’t required to have a single person serve as your executor and guardian. In fact, there are good reasons not to. The most obvious problem with naming a spouse to both of these roles is that the spouse may not survive you. That’s why it’s crucial to also name at least two other potential guardians, regardless of who you name as executor. If push comes to shove, and a court is forced to appoint someone, it’s far easier for a court to find a good executor than it is to find an appropriate legal guardian.
Common Mistakes in Picking a Legal Guardian
Picking just one guardian is the most common mistake in selecting a legal guardian. Make sure your bases are covered by including three or four choices. Remember, some guardians may predecease you while others may be unwilling or unable to serve. Always have backup guardians for your children.
Another common mistake is not saying who you really don’t want to raise your kids. If there is someone you don’t feel is appropriate to raise your child, don’t hold back. Share your opinions in writing and include the reasons why they would be a terrible choice. If they have a criminal history, addiction problems, chronic money problems, or a demonstrated history of poor choices, spell that out.
Also, avoid choosing a guardian just because that person has expressed a desire and willingness to serve in that role. You would be surprised how many people name their child’s grandparents as their legal guardians just because the grandparents really want to have that responsibility. You have to consider whether the person is capable of being a good guardian. Most of the time it isn’t realistic to name your elderly parents as your legal guardians. Don’t worry about making that person feel good - you shouldn’t be pressured into naming someone you don’t think is the best choice for your child.
How Do You Pick a Legal Guardian for Your Children?
Here are some tips to help you choose a legal guardian for your minor children:
First, start making a list of potential guardians who you would trust to care for your children in the event of your death. Consider family members, close friends, or other trusted individuals who are willing and able to take on the responsibility of raising your children.
Second, assess each potential guardian's ability to care for your children. Can they provide a safe and stable environment for your children? Evaluate their parenting skills, their financial stability, their living situation, and their willingness to take on the big responsibility of raising your children.
Third, discuss your wishes with the people you’re thinking of appointing. You don’t want to spring this on them after you’ve passed away without having a serious discussion about it first. Make sure you have an open and honest conversation about whether the person is willing to act as your child’s guardian. Include your expectations for your children's care, including your expectations for their upbringing, education, and overall welfare.
Fourth, consider the needs and preferences of your kids. Think about their personalities, their interests, and any special requirements they may have when you’re thinking about how you want them to grow up.
Fifth, consider whether your children have special needs. Will the guardian be able to keep the child in the school system that suits their needs? Will they be able to provide for their medical and healthcare needs? Also, ask yourself if the person has experience caring for a child who has special needs. It’s a good idea to talk to the potential guardian about the challenges of the child’s daily life and how that will impact the guardian’s life as well.
Since some children may need special care when they are adults, also consider whether you need to establish a trust to provide for long term care.
What if You and the Child’s Other Parent Disagree on Guardianship?
If you and your spouse or the child’s other parent disagree on a legal guardian for your children, try to work together to find a resolution that is in the best interest of your children.
Here are some steps you can take to resolve the disagreement:
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Identify the reasons for the disagreement: Take the time to understand each other's concerns and reasons for choosing a particular legal guardian. Listen to each other's perspectives and try to find common ground.
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Seek advice from a third party: Consider seeking advice from a trusted third party, such as a mediator, counselor, or lawyer. A neutral third party can help facilitate a discussion and offer suggestions for finding a compromise.
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Consider the needs and preferences of your children: Keep your children's needs and preferences in mind when making a decision.
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Review your options: Take another look at your list of potential guardians and consider additional options that may be acceptable to both you and your child’s other parent.
If you still cannot agree, you can leave a letter explaining the reasons for your choice and why you differ from the child’s other parent. It may not be dispositive, but it will help a judge resolve any issue that arises after you pass away. Leaving a letter of explanation ensures that your input will still be respected.
Remember, choosing a legal guardian for your minor children is a personal decision that requires careful consideration. Take the time to evaluate your options and choose a guardian whom you trust to provide the best possible care for your children.
