Imagining your child growing up without you is one of the least fun tasks of parenthood. But you know what’s worse? A judge swooping in to decide who should raise your child, in the absence of your own written instructions.
Then comes the fun part (“fun” may or may not be sarcastic, depending on your situation): asking the person you’ve chosen. And, in some cases, telling the people you didn’t choose.
There’s really no wrong way to ask someone to serve as a guardian. Most people will be flattered—what bigger compliment could you give someone than entrusting him or her with your child’s future?
Here are some steps to making the conversation as seamless as possible:
Make sure the person you designate as legal guardian is up for the job. “If you’re worried about putting a big guilt trip on them, you can start the conversation by giving them total permission to say no,” says Brad Klontz, associate professor of Practice Heider College of Business at Creighton University.
Lay out any concerns or special wishes you have. For instance, Parke Burmeister, attorney and founder of Casco Bay Law, LLC, notes that some clients find peace of mind if they know their children will stay in the family home after their parents die. If something like this is important to you, make sure the guardian would be willing to accommodate.
Talk about money. How will your potential guardian support your child? Do you have an emergency fund? What about saving for college? Let the potential guardian know what you’ve put in place to protect your children financially. Knowing you have adequate term life insurance, for instance, can help ease the guardian’s worries about the financial strain of being suddenly charged with raising a child.
When you ask someone to be your child’s legal guardian, he will often say yes right away. But if this person has a partner, Klontz recommends making sure he takes the time to talk it over with his spouse before you finalize anything.
You’ll need to decide if you want the legal guardian to also be in charge of handling your assets after you die. Syble Solomon, financial educator, president of LifeWise Strategies and founder of Money Habitudes, says deciding whether the guardian should also be charged with the finances depends on how much money we’re talking about. “When there is very little money involved and the guardian will actually be providing for the child, having that little bit monitored by someone else doesn’t make a lot of sense,” she says.
Those with larger estates, though, may benefit from appointing a separate trustee. Many estate attorneys recommend setting up a trust for your children to protect assets like life insurance in the event of your death. Burmeister says that you might sometimes want a separate trustee to manage these assets. “Let the guardian focus on raising the kids, and let the trustee focus on taking care of the money,” he says.
If you take this route, you may feel uncomfortable telling the guardian that you trust her to raise your kids, but that you’ve chosen someone else to manage the money—or telling the trustee that you’ve chosen her to manage your money, but not raise your kids.
Klontz has a simple suggestion: “The details don’t really matter as much as the framing does. Tell them, ‘We have these two roles to fill, and it was a really tough decision. We really want you to be involved in our children’s lives, so we chose this role for you.’”
The same approach can be taken when appointing an alternate guardian—initiate the conversation by explaining what an emotional process this has been, and let the backup guardian know how much you want him involved in your child’s life, too.
While many people prefer their kids to be raised by a close family member, it’s not always possible, or even preferable. If you’ve decided to have a friend serve as your child’s legal guardian instead of a family member, you might dread breaking the news to your family.
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“Admit that this is a difficult conversation for you,” says Solomon. “Then, share what you’ve put in place so your family will still be a part of your children’s lives.”
When letting parents or older relatives know that you’ve chosen a friend instead, Klontz recommends using phrasing like, “We know you’d provide an incredible home for our children, but we didn’t want to burden you.” As Burmeister points out, even if you have a toddler now and your parents are healthy and in their 50s or 60s, they might not be up for the challenge of raising a teenager when they're in their mid-60s or -70s.
Remember that you don’t need to announce your decision to your family, either, especially if you chose a non-relative because you have a difficult relationship with your family. “You have no moral obligation to tell everyone,” says Klontz. However, he does recommend informing at least one person from each spouse’s family to avoid potential hurt feelings and confusion in the unlikely event that the worst happens.
After you complete this intense process, it may be tempting to put it behind you and hope that your last will and testament ends up collecting dust in a filing cabinet. But don’t forget to revisit your decision every few years as life circumstances change.
Solomon says, “You may choose a different guardian for young children than for a teenager who wants to remain in the local school system to finish high school.”
Once you’ve completed this unsavory task, you can add it to the list of things your kids will probably never thank you for--but will be immensely better off because you did.
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This material is designed to provide general information on the subjects covered. It is not, however, intended to provide any specific legal advice or to serve as the basis for any decisions.
We are not a law firm, are not licensed to practice law in any jurisdiction and do not provide any legal advice. If you do need legal advice for your specific situation, you should consult with a licensed attorney and/or tax professional.
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