Choosing a Guardian for Your Children
Who will care for your minor children in the event you and your spouse pass away? Have you put you desires in writing?
Many people put off making this decision, as it can be a very difficult decision to make. Firstly, is not a circumstance you even want to think about and secondly, the issues and logistics of deciding who could best care for your children are very complex. While an unpleasant task, I encourage all parents to discuss this and to put their decision in writing. Failure to do so can cause additional family strife and even result in court battles. Or, perhaps everyone will agree on an arrangement but it would absolutely not be what you would have wanted.
In Virginia, you may designate a guardian of your children in your will or in a separate written document. Please be aware that such designation is not a final rule of law. The Courts retain the right to place a child with another party if that is found to be in the child’s best interests. Also, if the other parent survives you, that parent will automatically be the guardian of the child unless it can be shown that would not be in the child’s best interest. While not determinative, your written wishes can be used by a court in determining placement and will often avoid a court contest by making your desires clear to your loved ones.
There are many considerations in deciding whom to name as your child’s guardian. Many people name their own parents, but keep in mind the age and state of health your parents may be in by the time your children turn 18. Brothers and sisters are a frequent choice but think about the age of your child and the geographic concerns of your child having to change schools and move away from family and friends. Factor in the size of the family you are considering, your best friends may be fantastic parents, but would they be able to care for their four and your three? Compare family values and financial stability of those you are considering. Also, always discuss your decision with the potential guardians to make sure that it is something they are ready and willing to take on. It is better to find out now if they are not a viable option so that you can make a different choice. Consider changing your decision from time to time as circumstances change, people move and your children age. Consider multiple guardians for several children- perhaps your junior in high school should finish school out with a close family friend in the same school district but his much younger sibling would benefit from moving to be raised with her cousins. Do not be influenced by what people would expect or worry about hurting someone’s feelings, these decisions are very individual and are yours alone to make. Do come to an agreement with the other parent of your child, leaving conflicting requests will only create additional problems.
Also, a distinction must be made between guardian of the person and guardian of the estate of your child. Guardian of the person will act in your place a a substitute parent of the child while guardian of the estate will be in charge of your child’s finances. This can be one in the same person or two different people. Consider a person’s strengths and weaknesses in determining who would be an appropriate candidate for either or both jobs.
An experienced attorney can guide you in making this decision and help you put it into appropriate legal form. Taylor, Taylor & Taylor, Inc. is happy to help you with this as well as setting up appropriate trusts to ensure your children are provided for financially as well.
We are located at 11213 Nuckols Rd. Suite E, Glen Allen, Virginia, 23059, in the Twin Hickory office park between the YMCA and Suntrust. Call us at 804-266-9619 and mention KnowDifferent for $50 off a fixed fee or fee-based work.