Are your children under the age of eighteen? Choosing a guardian is often one of the hardest parts of estate planning. Your primary concern is the interest of your children. Your chosen guardian should be willing and able to provide a loving and stable environment for your children. And, don’t forget, this decision is more about values and protecting your children, not about who should supervise any money you have set aside for them. You might decide your selection can perform both functions, but it’s not required, nor is it always the best solution. So, how do you decide who is best for the job? You must consider all of your possibilities.
The Other Parent
If only you pass away, your child’s other parent will have custody unless other circumstances exist. If you feel that the other parent is not up to the task of proper parenting, you should speak with your attorney to determine how to designate another guardian. You may also wish to leave a letter explaining your reasons for a different guardian.
Grandparents and Family Members
In case both you and your spouse pass away at the same time, you should name the same guardian in your Wills. Most people consider grandparents first. Grandparents may be loving custodians, but you must also take their health into account. If they are older and physically unable to care for your children, look elsewhere in the family or to a family friend. If you pass over grandparents or family members for guardianship, leave a letter of explanation to help those family members come to terms with your decision. Your letter will help if any family member should protest the guardian choice in court.
Your Life Partner
Do you want your life partner to be your children’s guardian after your death? If you are a sole adopter or if the children are only yours by birth, you must make a special plan to name your life partner as the guardian of your children. Because this person is not a family member, he or she may face custody battles from your other loved ones. It is best to discuss this special guardian choice with your attorney and with your family to make sure your children remain in your home with your life partner instead of possibly being pulled out during a long custody battle
Name a Back-Up
Life is full of uncertainty. For this reason, you should always name a back-up guardian. If your chosen guardian is a grandparent, he or she may pass away before your children reach eighteen. Your specified guardian could even pass away at the same time as you, leaving your children’s care up for debate in court. Always create a back-up plan to ensure your children’s safety and happiness.
Larry Parman
Attorney at Law
Since founding Parman & Easterday in 1985, Larry has led over 1,000 free, community-service education programs and helped more than 10,000 Oklahoma families go from putting off their estate plan to getting it done. His goal for every client is the same: to become the person their family calls "the one who took care of everything."
Larry is the author of three books: The Straight Shooter's Guide to Estate Planning; Estate Planning Basics; and Guiding Those Left Behind in Oklahoma. He served as Oklahoma's Secretary of State and Secretary of Commerce, and his firm is the only member of the American Academy of Estate Planning Attorneys in the state.
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