For parents, arguably our most meaningful legacy will be our children. We spend such a significant part of our adult lives working hard to feed, clothe, and educate them. Many of us spend hours upon hours supporting our children’s extracurricular interests in sports, dance, scouting, or chess, among others. We help them make good choices and steer them towards an ethical, honest, and caring lifestyle.
Yet many parents neglect to address one simple parenting responsibility: naming a guardian who can take care of their children if they die.
A state court is required to appoint a guardian to care for children under the age of 18 if both parents die. This is a judge who doesn’t know your family or your values. If you have not specified your preference in your Will, the result can be disastrous.
Any friend or family member can go to court and nominate themselves to serve as guardian. The person appointed by the court may have very different ideas about parenting than you and your spouse. It’s also possible that two different people who love your children very much both want custody of them. For example, what if both sets of grandparents want custody? There can be a prolonged legal battle if they can’t come to agreement. The judge must determine what is in the best interest of each child. In the meantime, the children may be placed in temporary foster care or may be dragged into court to testify if they are old enough.
If there is no family member or friend willing to accept guardianship of the children, the Illinois Department of Children and Family Services will be named guardian. This means they could be sent to live with a foster family or in a group home until a private guardian is identified.
You know your children better than anyone else, so you are the best person to name a guardian for them. Even if you think you don’t have enough assets to leave to your children, it’s worth making a Will to make sure you can name a guardian.
Factors To Consider When Naming a Guardian:
- Is the proposed guardian a good role model? Are they patient and affectionate with children? Mature? Will their lifestyle accommodate raising children?
- Your parents or in-laws may be your first choice but will they have the ability to care for and keep up with young children? What is their health like? If they are capable of parenting now but later become unable, who do you want to be the successor guardian at that time?
- Don’t rule out other family members or close friends whom you have grown up with, know from your place of worship, or even parents of your children’s friends.
- Will the guardian love your children? If they have children of their own, will your children be treated equally? Do your children get along with their children? Are there other potential concerns about having your children live with their family? For example, a child who struggles in school and is contending with the loss of both parents may not fare well when placed in a home where all the children are high achievers.
- Does the proposed guardian share your moral and educational values, temperament, child-rearing philosophy, or religious beliefs?
- How close is your proposed guardian to other family members and your close friends? Will your children still be able to maintain their existing friendships and family relationships?
- If you name a husband and wife both as the guardians, what will happen if they divorce? Consider naming just one spouse instead.
- If the person you wish to name does not have the financial ability to provide for your children, can you leave sufficient assets to help them raise the children? For example, by buying adequate life insurance.
- Communication is key. If your children are old enough, it’s important to ask for their input. Talk to your proposed guardian to make sure they are ready to accept guardianship. If they have concerns or questions, explore ways to address them.
- If you select a guardian that you suspect other family members might take issue with, explain your reasons for selecting that person in writing. That way, if your selection is challenged in court, the judge will be able to understand why you named the person you did.
- Leave a detailed letter to the guardian explaining where your child’s important documents can be found (birth certificate, social security card, health insurance, health and school records). Explain your concerns about your child’s development, health concerns, dietary habits, daily routine, likes and dislikes, favorite personal items that can bring them comfort as they grieve your loss, study habits, who their friends and relatives are and their contact information, favorite recreational and sports activities, performance in school, and any other information that you think the guardian should have.
- Trust your instincts when naming a guardian!