An Estate Planning Essential: Guardianship For a Minor

When our son was born one of my and my wife’s first priorities was to make sure he would still be in good hands if something happened to us. What were the chances that both of us would be unable to take care of him? It didn’t matter. As a lawyer I knew what our options were: we could appoint a guardian for our son via our estate plan, or the State of California would do it for us.

Naming a guardian for a minor (or minors) is an essential, though emotionally fraught part of estate planning. The guardian, after all, will be asked to love and to care for the child, to provide education and a nurturing social context for him or her, to help the child grow into an independent, mature adult — i.e. to replace the parent. Nevertheless, the choice of a guardian is often a straightforward one. The parents of the child agree on who should be named, they talk to the candidate, and ideally he or she says yes. Other situations are more complicated, especially when the parents can’t agree or are divorced.

If you have not yet appointed a guardian for your son or daughter, I suggest you begin by making a list of all potential candidates, including relatives, friends and maybe even business partners. To find the ideal person, you might want to consider a couple of points:

• Is the person able? If your candidate is working a 70-hour management job he or she might not have the time and energy to raise a child. Other candidates, even if they are close relatives, could be an unwise choice because they have health issues or live too far away.

• Is the person willing? It is always a good idea to ask the candidate whether he or she is willing to take on the task.

• How old is the child? The choice is usually harder with younger children because they depend more on their parents. Older children, on the other hand, might want a say in who should become their guardian.

• Does the person share your moral, ethical, and, if applicable, religious values?

Just in case you wondered: the financial situation of your candidates is hardly relevant because a good estate plan will provide your child’s guardian with funds to draw on. (More about that another time.)

Having an estate plan in place and a guardian appointed is a huge step toward peace of mind for any parent. Needless to say, it will also spare your loved ones the anxiety of having to worry about your child — and keep your son or daughter from becoming part of the California childcare system.

by Kevin J. Moore

Kevin Moore, Founder of Kevin J. Moore & Associates, is focused in the areas of estate planning, trusts and probate services with additional expertise in both domestic and international business transactions and tax planning and tax controversy representation for individuals and companies.