Selecting a guardian to care for your minor child is not pleasant and is something that we often put off. Who wants to think about a situation where their young children are left to mourn their parents and live with friends or relatives? However, choosing a guardian to raise your children and manage their inheritance is crucial. If you don’t do it, you leave the decision to the court.
U.S. News and World Report’s recent article “How to Choose a Guardian for Your Child” says that, at worst, forgetting to name a guardian can mean a long court proceeding. This can be expensive, cause stress in family relationships and put your children in guardianship limbo. If your child has special needs, it could jeopardize federal or state aid that otherwise be available for them.
There are two types of guardianship to consider when deciding who will care for your children: guardian of the estate and guardian of the person. The guardian of the estate is a person who’ll manage the minor child’s inheritance on their behalf. It’s a fiduciary responsibility, and this guardian must make sure he or she carefully and appropriately manages accounts, keeps receipts, reports back to the court and doesn’t comingle the child’s assets with his or her own. Another option is for a parent is to set up a trust and have a trustee manage the funds for the child. This can allow the parent more control over how and when money is distributed, especially if you anticipate leaving a substantial inheritance.
The guardian of the person is the daily caretaker who’ll make sure your child gets health care, educational, housing and has all other needs met.
These two guardians can be the same person or different people, depending on the skills and abilities of your family members and friends. A separate person managing the estate can provide a series of checks and balances that can help, if you are concerned about the misuse of your child’s funds. However, it can also create enormous tension between the two people, particularly if both are family members.
You may want the guardian of the estate to have good money-management skills. The guardian of the person may be someone who shares your same values, has the energy to raise a child, and is close by so that your child doesn’t have to lose the familiar comforts of their school and neighborhood. Choose guardians who reflect these similarities.
You should also always name backup guardians, in the event that the primary guardian is unable or unwilling to take on the responsibility. You should also be sure to speak with your guardians ahead of time and make certain they understand the responsibility and are willing to take on the task of helping care for your children, if you pass away. Choose guardians who respond positively to this conversation, asking thoughtful questions and treating the conversation with the proper amount of gravity.
In Illinois, you may only make a nomination of guardians as part of a validly-executed will.
I am always available to answer any questions about this difficult but critically important topic.
Reference: U.S. News and World Report (June 4, 2019) “How to Choose a Guardian for Your Child”
