Making the Argument

The Hard Truth: Guardianship of Minors Is a Serious Issue - Plan Wisely

By Michelle Fulton

August 16, 2004

The guardianship series of three articles is being rerun for our new readers.

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: What is the best way to appoint a guardian or set of guardians for our minor children in the event that something happens to us? How can we guarantee that our children are well taken care of?

A: If you read last week’s article, then you read about the reasons why it is crucial to appoint guardians for your minor in your will in case something catastrophic occurs.

Now, let’s discuss the best ways to do that. The two most popular ways in which you can designate a guardian for your children are to either designate them in your will, or to execute a Designation of Guardian for Minor Children.

It is best to have this done by an attorney who has experience in Estate Planning.

It’s a very simple process- you simply tell your attorney who you want to have physical custody of the children, and who you want to have control over the money, and the attorney will draw up the papers, go over them with you, and them have you execute them. That’s the easy part.

Now, here’s the hard part- who do you choose?

This causes a great deal of friction in some homes where each spouse has the issues of family loyalty. So, in order to help the process along, here are some points to consider when selecting your guardians.

1. Who do you inherently trust to raise your children and/or manage their finances?

   If you have a person in mind to raise the kids, but they aren’t responsible money managers, it’s okay to appoint different people. You can appoint one raise the children, and another person to act as trustee (the money manager).

   You can even set up provisions as to how much money is to be distributed and under what conditions it is to be distributed.

   I advise most of my clients to appoint two different people for peace of mind. Having a different custodial guardian and trustee provides a system of checks and balances and takes some of the pressure off.

2. What kind of parents were/are the people you are considering?

   Take into account age, finances, physical condition, and overall ability to do a good job.

   Don’t simply select someone because you want to "honor" them- make sure that they are qualified to take on the responsibility.

   Remember that they will not only be taking on the raising of your children, but they will be responsible for guiding your children through the grieving process.

   How do they deal with adversity? What are their views on religion, discipline, and education? These are very important factors, and should not be overlooked. Don’t rush your decision.

3. Are the people you are considering even interested in serving as guardians and/or trustees?

   Make sure that you speak with everyone you are considering about what you want to do and make sure that everyone is in agreement.

   Nothing would be worse than if you appointed someone and they refused to serve, as that would create even more hardship and turmoil.

   Make sure that you interview each individual/couple that you are considering regarding their views on the criteria mentioned above as well as their willingness to serve in the capacity that you want them to.

   If they are the least bit hesitant, do not select them. You want to select people who are willing and even eager to step in if needed.

Bottom line: Choosing a guardian and trustee takes some careful thought and planning. Make sure you take your time and make choices that help you sleep better at night. Nothing is more important than the well-being of your children!

NEXT WEEK: How to avoid a family war when appointing guardians.

The Hard Truth: What Happens to Your Young Children When You Die?
It May Not Be What You Think

Michelle Fulton is an attorney at The Fulton Law Firm, PLLC. If you have a legal problem you would like her to address, you may e-mail your request to michelle@fultonlawfirm.com or mail your request to her at 806 Hwy. 3 South, Houston, Texas 77058.