Selecting guardians for their children is frequently one of a client’s most difficult decisions in the estate planning process. The decision is complicated by a desire to name those people the client feels will be the best surrogate for their children, without offending other family members or loved ones. Members of two families usually feel they are better suited to be named guardians than other family members. It is possible, for many reasons, that a nonfamily member is the best person to be named guardian.
Each set of grandparents may feel they are best able to be guardians of their grandchildren. Hard feelings can result if the client chooses one set of grandparents over the other. However, due to age or other factors, grandparents may not be the best guardians, even though they unrealistically feel that they are. The clients must consider the needs of their children and if grandparents could realistically meet those needs.
If another family member is considered, it may still create issues. The client may desire to name one of the client’s family members (such as a sister) and spouse as guardian, but does not want the sister’s spouse to serve alone if something should happen to the sister. In this situation, we will frequently name both the sister and her spouse as initial Guardians as a team, but name contingent guardians if those named cannot serve as a team. If there is a divorce or the spouse has died, the sister need not feel she has the additional obligation of guardianship.
Often a client will delay making a guardianship decision when they are not comfortable with any of their relatives or when relatives do not live in the same area. The clients believe that it would be unfair or unwise to relocate their children, who are already dealing with the loss of their parents. Close friends, living in the area, may actually be the ideal guardians in this case. In these circumstances, the client can name those geographically distant relatives as secondary Guardians. The client can then explain to their relatives that while the continued connection with their family is important, the client believes that being able to remain in a familiar comfortable environment will be more conducive to their children's well-being.
Ultimately, just as with any other position of responsibility in the estate plan, we remind our clients that whatever decision they make should be made with the best interest of their loved ones in mind. If there is a person who the client would not want as Guardian it is better not to name the person and risk offending them than name someone the client is uncomfortable with caring for their children. We always hope the decisions a client makes in naming a Guardian for minor children will never be needed. When the day comes when a Guardian is no longer needed, we remove that language from the estate plan so that no one will ever know that the client did not want them to care for their children.