Selecting a Guardian

Naming a guardian for their minor child may be the most important estate planning decision your clients make, and yet often one of the more difficult decisions.

October 18, 2007
by Katherine Ohlandt and Lara Gilman

A guardian is a court-appointed individual who will provide for the care of your clients’ child if your client dies or if they become incapacitated while their child is a minor.

Your clients have the power to designate a guardian under their will who will care for their child upon their death, and the power to designate a guardian under a Durable Power of Attorney who will care for their child while they are living but incapacitated.

Important Considerations for the Selection of a Guardian

Your clients may designate one or more persons to serve as guardian for their child. If the court determines that the selected guardian is unsuitable, the court has the power to name a different guardian for the child. For this reason, your clients should consider naming a backup or alternative guardian, just in case your first choice is not qualified to serve.

The guardian may serve in two distinct capacities: (a) as a person who provides personal care for the child, such as providing housing, making decisions about education, and safeguarding his or her health (also referred to as the “guardian of the person”); and (b) as a person who manages the child’s financial affairs (also referred to as the “guardian of the estate”).

Your clients should examine the qualifications of the child’s guardian carefully. Does the guardian have the time, temperament and ability to raise the child? Would the guardian raise the child as your clients would? Does the guardian have a special bond with the child?

Common Questions Clients Ask About Guardians

May I name a couple to serve as a guardian? Yes, you may feel strongly that a child should have two parents in the household. If so, you may name a couple and you may require that they be married at the time that they would be appointed to serve as guardian.

What if I name a couple and they get divorced? Can I designate which parent would then raise my child? Sure, but this may bring you to the realization that you really prefer one or the other of the husband and wife to serve as guardian. Let’s say that you want your child to remain with the husband in the event of divorce. You can mention that in your directions, or you may simply name the husband as sole guardian in the first place.

Is there any reason to name more than one guardian? It’s hard enough to think of one person to name, much less two. You cannot anticipate the circumstances at the time of your death or at the time of your incapacity. It’s impossible to know if the first guardian you name will be able to serve. What if your selected guardian is under financial distress at the time, is in the midst of a divorce, is suffering from an illness or even worse, has died before you? Always name a backup guardian, in the event the first person cannot serve, or cannot continue to serve after a few years of service.

Is there an alternative to naming a guardian to handle my child’s financial affairs? I’ve heard I can provide for the management of financial affairs by putting assets in trust for my child. You may provide for the management of your child’s financial affairs by leaving your assets at death in trust for your child, in which case the trustee of the trust (who may be someone other than the guardian of your child’s person) would manage, invest and distribute the trust assets for your child. The person you select to serve as trustee of the trust should be well-suited to that task of managing and preserving the trust fund for your child’s benefit.

How do I avoid imposing a financial hardship on the guardian while he or she cares for my child? If you create a trust to hold your child’s inherited assets, then you can direct the trustee to pay the guardian’s expenses. You may want to provide that the trust assets may be used to pay not only a guardian’s actual expenses, but also the increased household expenses incurred by the guardian. For example, the guardian may need to hire in-home daycare to take on the care of your child, or the guardian may need to add another bedroom to the family home. Some people, especially those with more money than the guardian, go so far as to allow the trust assets to pay for education or other expenses of the guardian’s children, to insure that the children who are raised together are offered the same opportunities.

For more information on selecting a guardian or other estate planning techniques please contact your Farella Braun + Martel Family Wealth attorney at (415) 954-4400 or via the e-mail addresses below:

Fred Caspersen            
Michael Korbolz

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Katherine Ohlandt is a partner in Farella Braun + Martel’s Family Wealth Group. Her practice focuses on complex trust and estate matters, including the development and implementation of wealth-transfer strategies and business-succession plans. Lara Gilman is also a partner in Farella Braun + Martel's Family Wealth Group and counsels individuals and families on estate planning and succession planning.

This information is provided as a service to our clients and friends. It should be viewed only as an overview of the law, and not as a substitute for legal consultation.