Why choosing a Guardian is so important and can be such a challenge
Having children adds new, and extremely important dimensions to estate planning. The trauma of having the courts, or long drawn-out legal proceedings, dictate where your children will live can be avoided by appointing a guardian for the child/children in your will.
From our experience, parents tend to delay making wills because they struggle with picking the appropriate guardian(s) for their children. As a parent, you want to be sure that the best possible person is ready and willing to step in and finish raising your child/children for you, should the worst happen. With careful planning you can put protection in place – and hope your children never need it.
- Who would you be most comfortable having them live with? Why?
- Who do they already feel comfortable with?
- Whose parenting styles, values & beliefs most closely match your own?
- Who is most emotionally, financially & physically prepared to take on this responsibility?
- Would they have to move, change schools, leave Province/Country?
- Would the guardian take all of your children, or would they have to be split up amongst several relatives or friends?
- Does the person you are considering have other children? If not, how do you know they would be a good choice?
- What is the current age of the person(s) you are considering? Many people consider choosing their own parents as guardians; a worthy choice but can they cope with a young, busy and active family. Also, if you are updating a previous will 10 years or older, has that situation now changed re the age of your chosen guardians?
- Some people choose a sibling and his/her spouse as a guardian. Again the caution here is if they end up divorced; your children could be drawn into an ugly court battle. To avoid this, consider specifying only your sibling as the guardian, and not his/her spouse.
- Don't make the executor and guardian the same person. They each have very specific duties, and it’s better to distinguish between the two roles so there are checks and balances. The executor has control over the estate finances, and the guardian asks for money.
- Include a back-up guardian. Many people neglect to update their wills, or perhaps someone you have appointed is no longer able or willing to fulfil that role. Alternatively, you may no longer want the person you selected to take on that role, for whatever reason.
- Ask the guardian first. Before you commit to the document, have that conversation to ensure that person would actually be willing to take on the role; you want to avoid any surprises once you are no longer alive.
- Get it in writing. Once your decision is final, take the final step to formalize that decision. Your lawyer can advise on proper procedures.
- Engage in your discussions with potential guardian choices; help take the "emotion" out of the decision and analyze your situation based on the facts and assets custom to you
- Analyze your final choices and research any legal or other consequences to your decision
- Assist in the finalization of your choice via the formation of the formal will document
- Follow to completion the will process, including the guardian selection