Have you named a guardian for your children?

This is another one of those things, along with estate planning, that people often either put off or don’t consider at all. Most people expect to be there for their kids throughout their formative years, but sadly, not everyone will be.

Naming a guardian is an important part of your estate planning. Doing so can bring you some peace of mind and better assurance that your kids will be raised how you would like them to be should anything happen to you.

Here’s what you need to know for the State of New York:

Why name a guardian?

While for most people, it doesn’t bear thinking about, there are multiple potential situations where it may become necessary for your children to be legally cared for by someone else. For example:

• The death of one or both parents
• The incarceration of a parent
• The deportation of a parent
• The incapacitation of a parent (to the point where they’re unable to care for the child and can’t make decisions for them)
• The deployment of a parent to active military service (especially if there isn’t a second parent available)

The bottom line is that naming a guardian means that you have a say in who cares for your children. You can name a guardian in your will or via a designation of guardianship, but in New York, ultimately the courts will make the final decision (although of course, they’ll usually appoint the person you choose if they are deemed to be in the child’s best interests).

What happens if you don’t name a guardian?

Without naming a guardian, it falls to the courts to make the decision with no input from you. Your family members or close friends can petition the court for guardianship, but this too can lead to some awkward and disruptive situations for your kids.

For example, what if they are in disagreement over who should have guardianship? It can turn into a dispute that the court is left to sort out and that could have negative impacts on your children. Children can also express their preferences, which may be taken into account (especially children over age 14). Ultimately though, the court will make a decision based on what they see as the “best interests of the child.” The Judge officially appoints someone to be a guardian with a court order called “letters of guardianship” which specifies the type of guardianship, and your children go home with that person. 

Without naming a guardian, you don’t really know who might come forward and petition the court. You can always hope it would be someone you would have otherwise chosen and who has your child’s best interests at heart, but it’s better to be certain. If your child is set to inherit significant assets, this can bring predators out of the woodwork.

How do you choose a guardian?

Firstly, it’s important to understand that as the court has the final say, you should consider what their preferences are going to be in awarding custody. The courts overriding concerns are providing for the safety and material needs of the child. They also tend to prefer family where possible, with a tendency to look to aunts and uncles before grandparents (although there are no hard age limits). Older siblings may also be considered.

With that said, of course, any family member should be able to provide relative stability for the child, too. The court could override your stated preference if they don’t find that the person is able to provide “in the best interests of the child.”

Other options might include close family friends. In fact, New York law allows for virtually anyone to be considered as guardian for a child, including someone who has a criminal record. If any of their offenses were against children or of a serious nature though, they are likely to be removed from consideration. The person should not be currently incarcerated and should be “of sound mind.”

So with that basic “best interests of the child” covered, what else might go into your decision?

Have you asked them?

It’s always better to have asked the person you have in mind first. Make sure they’re definitely in a position and willing to assume the responsibility. We usually suggest speaking with and appointing a back-up guardian too – you never know if the circumstances of your first choice will change between naming them in your will and the need to enact guardianship.

Also consider, while there are no set age limits, age and health may be considered by the court. People often think to name their own parents while they have young babies, but those babies grow quickly and require a lot of energy and physical ability!

Religion (and other beliefs)

Religious preference is one area that can become contentious for many people. You might have specific wishes about the spiritual practices of your children, so it’s prudent to consider this when appointing a guardian.

This is one area where it’s extra-important to have a conversation with the person/s you are appointing as guardian first. You can’t really state in a will that you expect a guardian to take your children to church or temple every week, as of course, doing so becomes at the will of the guardian. On the opposite side, if you don’t want your children attending religious services, you should consider this before appointing a guardian whom you know attends regularly.

Clear communication is key. You may be able to form some kind of compromise, although that won’t be binding on the guardian. For example; “please have the children go to church with grandma every week.”

In terms of other beliefs, we all have certain understandings that are fundamental to how we live our lives. They might be related to political or other personal beliefs. You might have a preference for someone who is in alignment with those. 

Emotional stability

This is something the court will look at and you should consider too. Emotional stability means that the person is overall mentally fit and lives a stable sort of life. To give an example, naming your brother who has a tendency to couch-surf through life is unlikely to be looked upon favorably by the court.

Lifestyle

What sort of lifestyle would you like your children to be raised in? Does the lifestyle of the person/s you are considering appointing have room for added children? For example, we sometimes see people name an aunt or uncle as guardian, but opt to change that when the person has a handful of their own children (and may not have room for extra!)

In terms of lifestyle, you should consider how they are as a person overall, too. For example, will the self-centered party animal aunt rise to the occasion? Or will she be unable to give your children the attention they deserve? It might sound a little harsh, but in the end, it’s about finding someone who can truly help your children through a time of trauma.

This is important to remember. If it comes down to enacting guardianship, it always goes along with some sort of trauma for your kids. They’re going to need special attention and potentially services such as counseling. Pick someone who will be in tune with those needs.

Location

Where would you like your children raised? This can raise a lot of questions for people with close relatives out-of-state, or who were born in a foreign country. If you are an Australian but your kids were born here, where do you want them to stay? If your sister is in New Mexico, do you expect that she will move to New York or that the kids will move to her?

Any guardianship appointment that might mean uprooting children should be discussed with them and with your lawyer. 

Financial considerations

When it comes to naming guardianship, there are two types: the legal guardian who has physical custody and gets to make key decisions for the child (such as permission to participate in activities), and the fiduciary guardian who is responsible for managing the finances set aside for the child by the deceased parent’s estate. It’s possible that both might be the same person, but sometimes people prefer to name a different person for each role (or the court might appoint a conservator in the fiduciary role).

If you name a separate fiduciary guardian, it’s important that they know you and your children well and understand your wishes. For example, maybe you want to continue expensive extracurricular activities – you don’t want to put the legal guardian in the position of having to fight for them. It can definitely also be prudent to ensure that both people will get along!

Final thoughts

A lot goes into considering who to name as guardian, as it should. You want the best possible outcome for your kids if it’s necessary to place them under guardianship.

The most important factors are the safety and material needs of your children. At a time where they are likely to be traumatized, you probably also want heavy emphasis on caring for their mental wellbeing. Who will be the best in that role?

Choose carefully and choose backups, too. Consult with your lawyer to ensure that you’ve got the best directives in place for your own unique situation.