As the Estate Geek, I sometimes have to explain simple or complex issues which are often misconstrued by even attorneys. This month we are talking about Guardianship Nomination forms.”
It is probably an oversight by attorneys, or simply trying to make things easier, that leads so many people to not fully understand what nominating people to serve as guardians for minor children means. This leads to a lot of needless confusion when not explained ahead of time, but it also can present planning opportunities that clients may not have considered before. Yes, a nomination of guardianship form or guardianship provisions in a Will are clear, but how these wishes are approached are not always clear to the clients.
First, nominating people for guardianship is not simply “giving your kids to someone.” Unlike allocating and distributing property to people, the right to have your children raised by your chosen individuals must be reviewed by a court. In giving away property through a Will or Trust, courts will simply follow the last legally executed estate plan, even if it were 20 or 30 years old. Unfortunately, this does lead to some unintended disinheritances, but courts are extremely reluctant to open a can of worms by listening to people testify “well, they told me I was going to get the house” and possibly change the inheritance. Not so with children.
The fundamental differences are that children are legally assigned guardianship based on what is in the best interests of the children. It does not matter what relatives *say* the parents wanted, but instead it “kind of” matters what is in the nomination of guardianship forms. A nomination of guardianship form spells out who is desired to serve as guardian for minor children, and courts will generally take these people into consideration. But they will also mix in other factors. The closer a child is to 18, the more weight their wishes will have. The other factors are what other family and friends step forward wishing to have guardianship and how their credentials stack up against the others.
While this sounds disconcerting to most parents, there is a very good reason. Just because your brother is a suitable person to be a guardian on the day you signed the nomination forms does not mean that he will be completely unsuitable in five years. If that brother ended up going to jail and rehab several times for drug use, it is unlikely a court would assign guardianship to the brother because you just never got around to changing the nomination of guardianship forms. And you would probably be thankful for that.
This does not mean that the Nomination of Guardianship forms are useless. In general, a judge has to really find a reason to skip over your chosen guardian since as the parent you are presumed to know what is best for your own children. So executing Nomination of Guardianship forms do have significant weight in a judge’s decision. (Let’s save the more complicated questions about divorced parents not wanting the other parent to have guardianship or situations involving domestic partners raising children for another time.)
One final word about guardianship that many of my clients feel relieved to hear the first time they put together their life and estate plans—just because you are naming someone to be a guardian does not mean that you also have to put them in charge of the money. (I can hear some sighs of relief already.) Not everyone can be Superman or Superwoman when it comes to money and raising children. I often have clients who tell me their brother would be great raising their children, but he makes terrible financial decisions. On the other hand, their sister is fantastic and investing and finances, but she is definitely not parent material. And so they struggle to find one person who can do both, and it’s not necessary. The brother can be nominated as guardian and the sister can be appointed as trustee. Now they each can help according to their talents.
While there is no absolute in nominating guardians simply because a court has to assign guardianship based on the best interests of the child at the time, having Nomination of Guardianship forms for minor children is still extremely important. Without at least telling the court, in writing, who you think would be best in raising your children, then the courtroom becomes a free for all. Giving a court a bit of guidance could make all the difference for the children.