Manhattan estate planning attorneys understand that many people are uncomfortable making the appointment to have an estate plan created. After all, no one wants to think about dying.

Everyone over the age of 18 should have a will– and other documents commonly created alongside it—like a healthcare proxy, power of attorney, and/or living will. But for those who are parents, one of the most compelling reasons for creating a will is to designate who will be the guardian of your children if you die before they’ve grown up. For many, making the decision about who is going to raise your minor children is such a hard decision that it keeps parents from making a will at all. And that could be disastrous.

What is a guardian and what do they do?

In a nutshell, a guardian is a person or persons ideally chosen by the parents of minor children to raise their children if they should die before their children turn 18. In addition to acting in a parental role, a guardian may also be appointed over the property (finances) of those minor children, such as trusts created before or at the time of the death of the parents.

When planning for children, sometimes parents will appoint one guardian to both raise the children and manage the children’s money and sometimes they will choose two different guardians—one for each job.

The guardian will essentially do everything a parent would do for the children entrusted to their care such as provide food, shelter, education, medical treatment, religious upbringing, emotional support, financial support and/or safeguarding of assets, love, advice, and more. The inheritance of minor children should be placed in trust and managed by either the guardian raising the children or a separate guardian appointed specifically for such a purpose, to be turned over to the children at some point or points after they have reached adulthood.

Considerations when picking a guardian

Some things to consider when choosing guardian:

  • Grandparents are often not the best choice. Even if they did a great job raising you, they are older now– possibly significantly older– and may have health or financial issues that would make the demands of raising young children too difficult to take on.
  • Your (or your spouse’s) siblings might be a good choice especially if your families share a close relationship. Being raised by aunts or uncles with cousins will ensure your kids are with family and sharing familiar traditions at the holidays which may be less disruptive. However, it’s sometimes difficult to choose if there are close relatives on both sides of the family and parents fear creating hard feelings by choosing one side over the other. Some couples compromise by choosing one side to raise the children and the other side to handle their finances.
  • Sometimes family relations are nonexistent or strained and close family friends might be a better option. Ask yourself who is always there for you and your children in an emergency and consider whether that type of friend would be the best person to raise your children. They may live locally, know your goals and your dreams for your children, and even have a good relationship with your children. If their kids and yours are good friends and go to the same school or to the same after-school activities, then that could be the least disruptive guardian option for your children– especially if your sister lives halfway across the country. Consider what would be least disruptive for your children who will already be reeling from losing you.
  • As if it isn’t hard enough to choose a guardian, you need to choose a back-up guardian– – known as a successor guardian. This would be someone who would step into the role if the person you chose first cannot or will not accept the responsibility when the time comes, or accepts it but then later can’t continue to do it.

Once you’ve decided on a guardian, and a back-up, you should let them know as it’s an incredible honor and a huge responsibility that will be life-changing for them. Allow them time to consider whether they are truly able to accept this responsibility because it’s better to know now when you can choose somebody else then to pressure them into accepting or assuming they will accept the responsibility.

If your minor children are young teens and sufficiently mature, you could also consider asking them who they would want to live with if they couldn’t live with you. But that will likely be upsetting for many children– so only you can decide if it’s worth having that conversation.

Because a parent will always feel that no one could love their children as much as they do, it often feels like no one you pick will be good enough. But you need to pick someone.

What if I die without appointing a guardian?

When parents can’t agree on who to name as guardian, they may throw their hands up in frustration and say it’ll work itself out. They just assume the right person will step up. In reality, this is the most selfish thing you could unwittingly do to your grieving children and family. When you don’t designate a guardian, the court will make the decision. It may not be anyone you would have ever chosen. And this will all be happening in a potentially drawn-out court process with your kids in a temporary custody situation at a time when their whole world has just collapsed. Do not add to the chaos and sadness by not having made the best choice you could. You can always revise your will and change the guardian if you change your mind in the future. But pick someone now.

MUST HAVE PLANNING: Having a comprehensive estate plan in place—including naming guardians who will be the best fit for meeting your children’s personal, health, and financial needs—is important from the moment you first become a parent.

At Sverdlov Law, we are dedicated to helping our clients get the peace of mind that comes with getting their affairs in order, preserving their assets, and protecting their families. From our office on Wall Street, we represent clients throughout New York City and New York State in all aspects of estate planning, estate administration, Medicaid planning, elder law, and business succession matters.

Contact us to book your estate planning strategy session today or for additional resources regarding guardianship, wills, trusts, advance directives, and other important matters.