This is, by far, the number one thing that holds up parents of young children on their way to the attorney’s office to get their wills and guardianship nominations done. I’ve had people tell me that their solution was to just wait until the kids turned 18 to do any sort of planning so they wouldn’t have to make that decision. That’s some commitment to indecision!
The good news is, the state has a plan for your children and your money if something happens to you and you haven’t named guardians. The bad news is, the state has a plan for your children and your money if something happens to you and you haven’t named guardians.
Sometimes when struggling with a decision, it can be helpful to think about what will happen if you simply don’t decide (which in itself is a decision) and one night you and your spouse don’t make it home.
1. Child protective services would be called if neither parent was available, since no one else has the legal authority to care for the children. They would be taken to a foster home until more permanent arrangements could be made and a guardian could be appointed. (Is there anyone you could choose who would be a better option than foster care?)
2. The family member who lives the closest would likely arrive to attempt to have guardianship given to them. This could take days or weeks, depending on whether anyone else was attempting to obtain guardianship as well. (Is the person who would seek guardianship the same person you would want to have guardianship? If two or more people were seeking guardianship, who would look best to the Court? Is this the person you would want named?)
3. Alternately, a family member who wants to get their hands on the funds that have been left to the children may seek guardianship. (Is this the person you would have chosen?)
4. The same person who seeks guardianship of the children will mostly like be put in charge of managing all of the money left behind, unless someone else steps up to fight this. (Is this the person you want handling all of the money for your children?)
5. When your children turn 18, they will be entitled to receive all the funds left in your estate, outright. (Think back to when you were 18, then think about how much life insurance you’ve purchased, the value of your retirement accounts, the value of your house, then think back to when you were 18…)
“But we really can’t decide! We just fight about it. He wants his mother and I want my best friend.”
In this case it can be helpful to each make a case for why you are choosing a particular person. It may help you work through and reach an agreement. The fact that the person shares your parenting values, makes your child feel comfortable and is at an age where they can handle child raising for the next X years are good reasons to choose someone. Guilt and not wanting to have to tell the person you didn’t choose them are not good reasons. See if you can reach a compromise by naming back up guardians as well, or leaving instructions for the guardian and trustee that funds should be used to allow travel and visits with a family member who might not be the right guardian, but is close to the child. If you still can’t decide, read the list above again.
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