There’s really no way around it: making an estate plan necessarily involves confronting the possibility of our own death and incapacity. For those of us with young children, this also means confronting the idea of our children growing up without us, being raised by someone else.
Those are some hard scenarios to imagine-hard enough, in fact, that many people choose not to do so, burying their heads in the sand and hoping the issue never arises.
Alas, as the saying goes, hope is not a strategy. And the question is not whether someone else will raise your children when you cannot, but who will take on this important task and, more to the point, whether that person will be someone chosen by you or by a judge who doesn’t know you.
As I’ve discussed before, if you haven’t created an estate plan, the State of Texas already wrote one for you, and that plan includes an order of priority on who should be guardian of your children. That plan might not match your wishes, but even if it happens to, there’s advantage to spelling your wishes out.
For parents of young children, our motivation to do an estate plan isn’t really about our stuff. It’s about our kids.
So, how do you go about choosing who should be guardian of your children? First, let’s back up a bit and understand what we’re talking about with guardianship.
When does need arise for guardianship of a minor?
Let’s start with the idea that parents are what the law calls “the natural guardians” of their children- that is, we don’t have to go to Court to get the right to make decisions for our own children. Until they are 18, just being their parent is sufficient for us to have the ability to make decisions for them.
Generally, need for a guardian arises when both parents of the child die or become legally incapacitated and thus, unable to care for their child. At that point, the child needs a legal guardian. (Note: guardianship, which comes into play when the parents are deceased or incapacitated, is a different concept than conservatorship.)
How long does a guardianship of a minor last?
Until the child turns 18 and is no longer a minor. Once a person turns 18, he is no longer under the legal disability of minority and is presumed to have capacity to make his own decisions.
A person with special needs may still lack legal capacity upon reaching 18 and at that point, a guardianship of adult comes into play, in which a judge must find the person to be incapacitated.
What types of guardians are there?
The law actually provides for 2 types of guardian for your children: guardians of their person and guardians of their estate.
Guardian of the person: The guardian of the person (GOP) role is what we typically think of when children are involved. This person’s job is to provide for the child’s physical care, consent to medical treatment on his behalf, determine where he should live and attend school, and consent to matters such as field trips. In short, the GOP handles decisions relating to everything but managing the child’s assets.
Guardian of the estate: The guardian of the estate (GOE) handles assets owned by the child and may speak for the child in legal proceedings and contracts.
Does a minor need both a GOP and GOE?
Not necessarily. Most minors don’t have an estate that needs managing as most minors do not own significant property. A child who has just inherited property from deceased parents might have an estate, but if the parents set up their estate plan for their assets to pass in trust to their children, the trustee appointed in the parent’s will may be able to manage all assets such that there is no need for a GOE.
When we talk about guardians for minors we’re generally talking about a GOP. While the parents can, with a well-drafted estate plan, often avoid the need for a GOE of their children, they cannot avoid the need for a GOP. Rather, they may tell the Court who they wish that GOP to be.
Do I have to nominate the same person to be both GOP and GOE?
No. These roles may be filled by different people. However, in that they would necessarily have to work together to meet the children’s needs, it’s important to nominate people who get along and could work closely.
Who should I nominate?
Let’s start by ruling out people who the Court cannot legally appoint as guardian. If you nominate one of these people, the Court cannot honor your wishes and appoint them because their appointment is prohibited by law. Note that the disqualifications are slightly different for GOP and GOE, but for simplicity I’m going to combine them:
- Minors and incapacitated people (i.e., people who do not have capacity to make decisions for themselves, let alone others)
- People with a criminal history or incident of abuse or neglect of a child or elderly person (Note: I’m over-generalizing here, but if the person you want to appoint has any sort of criminal record, talk to your attorney to see if it may be disqualifying.)
- People who may have an interest adverse to the child- for example, someone who owes a debt to the child or is a party to a lawsuit concerning the child
In short, the Court must make an appointment that is in the minor’s best interest, and naming someone who lacks capacity, has an interest adverse to the child’s, or who has shown himself untrustworthy in the past is not in the child’s best interest.
Other than those disqualifying factors, what other limitations are there on my appointment?
You can appoint go-guardians, if they are married. Otherwise, only one guardian may serve at a time.
For married couples, I recommend nominating the same guardians in the same order, so that a Court isn’t put in the position of trying to sort through conflicting requests.
For single parents, it’s important to know that you cannot cut off the other parent’s parental rights by naming someone else as guardian. Your nomination for GOP will only come into play if both legal parents are deceased or incapacitated. Guardianship isn’t a tool for terminating or limiting parental rights-those are family court issues.
However, you can write your estate plan to ensure that any assets the child inherits from you are managed by someone you appoint, whether a trustee or, if needed, a GOE. Parents are not automatically their children’s natural GOE.
Translated out of lawyer-ese: You can’t write a plan that keeps your child from going into the physical care of the other legal parent, but you can write a plan that ensures any assets that would go to your child as a result of your death are managed by someone you choose on the child’s behalf.
Okay, so given all of that, there are a lot of people I could nominate. How should I choose?
When you’re choosing a GOP for your child, you’re choosing the person who will decide where your child lives, where she goes to school, and will consent to medical care, field trips, etc. In short, you’re deciding who will parent your child until she becomes an adult.
Among the factors you may want to consider in determining whether someone would be a good guardian for your child are:
- Does my child already have a close relationship with this person?
- Would this person be willing and able to take on the responsibility of raising my child?
- If I have more than one child, is it important to me for them to stay together, and could this person take them all?
- Is this person in sufficiently good health to do so?
- Where does this person live, and how hard would it be on my child to move?
- Would it be a financial burden on this person to be my child’s guardian? While you may plan to provide for your child financially, it’s still important to consider this factor in case need arose beyond your means.
- Does this person know the values I wish to raise my child with, and do they share, or at least support, them?
- Will this person ensure that my children don’t lose connections with other family members or friends? For example, if I appoint my parents, will they keep my spouse’s extended family in the children’s lives?
The hard truth is that no one will raise our children just like we would, and picking the best person involves deciding which factors are most important to you and choosing the person who comes the closest to meeting your wishes.
Should I talk to my chosen person before nominating them?
Yes. Being a guardian is a big and important responsibility, and the person may be honored by the consideration but ask you to nominate someone else instead. If your chosen person isn’t interested or able, better to know that now while you can make another choice.
But if the person is willing, now you have a good opportunity to discuss it and tell them why you believe they are the best choice and ensure they understand your wishes. Remember, you can’t expect someone else to raise your child exactly as you would, but you can make sure you’re on the same page with regard to important matters.
So once I’ve nominated guardians, can I cross it off the to-do list forever? What are reasons why I may need to change my nomination?
It’s hard to predict the future. The grandparents who are the picture of health today could experience health issues of their own down the line. The aunt and uncle who are happy to step up today might have several children of their own and then not be in a position to care for yours, or the bachelor you didn’t consider initially might now have a spouse and a more grounded family life. The close friend who lives nearby could move across the country.
And your children get older. Perhaps you chose one person when your children were young but now that they’re older and their needs different, someone else now seems like a better choice.
You are always free to change your nomination. I recommend that my clients briefly review their estate plans once a year to ensure they still accurately reflect wishes and circumstances.
If I nominate someone in an appropriate document and then I and the child’s other parent both die, does the person we nominated automatically become my child’s guardian?
No. A nomination is just that-a nomination. It’s you expressing your wishes on who you’d like a Court to appoint. Only a Court can actually appoint a person as guardian.
How does that happen?
If you pass away, the person you nominated can file an application to be appointed guardian of your children, along with a copy of the declaration of appointment in which you named that person guardian. Assuming the person passes a background check and the Court finds that his appointment is in your child’s best interest, the Court signs an Order appointing your nominee as guardian, and upon taking his oath, posting any required bond (which you may waive in your nomination), and obtaining Letters of Guardianship, your nominee is now your child’s official legal guardian.
This all sounds pretty heavy. But once I’ve done it, I’ll know that even if something should happen to me, my children will be well-loved and cared for by someone I chose, who is willing and up to the job.
Couldn't have said it better myself ;)