Top Considerations When Selecting Guardianship for Your Child

Oct 6, 2022 | Estates Planning and Asset Protection

There are a lot of cliches in children’s literature. Since before the Brothers Grimm wrote their first fairy tale, storytellers have been using tropes like the damsel in distress, revenge of the nerds, or the reluctant hero to spin magical tales of woe and wonder.

But one literary trope—the Dead Parents Dilemma—is so pervasive in juvenile fiction that it has spawned thousands of pages of think-pieces and academic papers. 

From the manipulative evil stepmother in Cinderella and the scheming Count Olaf in A Series of Unfortunate Events to James and the Giant Peach’s abusive aunts and the neglectful Dursleys of Harry Potter, the heroes of Dead Parents Dilemma stories are almost always left to be raised by relatives or neighbors who are woefully unsuited to the job.

It’s a popular cliche because it’s the worst nightmare of parents everywhere. But even though it’s something we all fear, a recent study found that just 36% of parents with minor children have estate planning documents in place.

And we get it. Planning the who’s and how’s of your child’s future without you is an uncomfortable, stressful task. But as stressful as it is, it’s far less stressful than it will be for all your loved ones if you don’t do it.

You would never let a stranger who doesn’t know you or your children pick a babysitter, but if you pass away without a guardianship arrangement in place, that’s what will happen. In this scenario, a judge will choose which family member or friend will be responsible for raising your children. 

Factors to consider 

Read through our tips for selecting a guardian for your minor child(ren) to ensure they’re placed where you want them to be.

Parenting style

Nobody can take care of your child as well as you can. A Texas judge will almost always rule in favor of your documented wishes as to who will become the guardian of your children. 

If there has to be someone else involved, it’s important to choose someone with a parenting style you respect. Some things you should take into consideration include:

  • Compatible religious beliefs (or a willingness to honor your wishes for religious involvement)
  • Views on discipline
  • Approach to education
  • Number of children in the guardian’s family (will your children receive enough day-to-day support or could they get lost in the shuffle?)
  • Perspective on race, gender, LGBTQ issues

One quick note: you don’t have to select a couple to be the guardian for your kids. A single friend or sibling who knows you and your children well can be an excellent option for guardianship, as can a loved one who does not have any children. You can also name backup guardians in the event that circumstances at the time of your passing have made your preferred guardian unable or unwilling to take your children on.

Another thing to consider is outlining who should not be considered for guardianship (i.e., a non-custodial parent or family member with a criminal history).

Finances

If you’re writing an estate plan, you’re likely to include financial resources to help whoever you select to manage the expense of caring for and educating your children.

But raising a child is a costly endeavor, and there’s no way to accurately predict every future expense. When choosing a guardian for your minor, it’s smart to take their financial situation into consideration. Money shouldn’t take precedence over parenting style, but you shouldn’t ignore it either.

A note on guardianship types: It’s possible, common even, for parents to select more than one guardian to care for their children. Under Texas law, you can name one person as the guardian of the person and a separate individual as guardian of the estate. 

A guardian of the person provides the traditional day-to-day care involved with raising a child. A guardian of the estate, on the other hand, is responsible for managing the financial affairs of your estate on behalf of your child. They will oversee the investment, distribution, and management of any trusts, real estate, and investment portfolios you leave behind. 

If there is a disparity between whose parenting style you prefer and who you trust with finances, splitting guardianship can be a good solution. An experienced estate planning attorney can help you make these types of arrangements.

When there are minors involved, most of the time a trust-based plan is recommended, and the trustee controls the assets and finances.  This can be a separate person from the guardian. 

Age and energy level

Parents often want to name their own parents or siblings as guardians. It’s understandable. Their parenting style is a known entity, they’re experienced, and they often have a close relationship with their grandchildren or nieces and nephews. And if your children are young, your parents and siblings may still be young and energetic.

But it’s important to remember that as your children get older, so do your other family members. 

Before you make an older relative your children’s guardian, think about:

  • How old they will be when your youngest child becomes an adult
  • Health issues they have that may be exacerbated by age or stress
  • The amount of physical strain involved in caring for your children

Your guardian doesn’t need to be an Ironman-level athlete, but you want to make sure you’re providing your child with the most stable support possible.

Location

Another critical factor to consider is where the potential guardian lives. Living far away isn’t necessarily disqualifying, but moving can be stressful for your minor child and be an added expense that should be accounted for.

Don’t let the courts make this choice for you

No matter how much your child wishes for a fairy godmother or a letter from Hogwarts, we can guarantee they don’t want to be raised by Cruella de Vil.

Texas courts almost always award guardianship to a parent’s preferred individual when they are named in a formal estate plan. Without an estate plan, there’s no way to predict who a judge will choose to raise your child. Planning ahead can give you the confidence that you’ve given your children the best chance of success in the event of the unthinkable.

Speak with a Texas guardianship attorney today

Estate planning can be overwhelming, but it doesn’t have to be hard. The knowledgeable, compassionate team at Shann M. Chaudhry, Esq. PLLC has extensive experience helping families navigate the tough decisions that come with end-of-life planning.

Whether you need help creating your first will or want to amend an existing document, we can help. Contact us today to get started.

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