Just as you wouldn't leave young kids home alone without a baby sitter, so you shouldn't leave them without making provisions for their future if anything happens to you and your spouse.
Naming a guardian is easy--and hard. The easy part is the mechanics. You just nominate someone in your will. Although the court actually appoints the guardian, the judge usually follows the will's instructions--if there are any.
About the only instances in which the judge might not follow a parent's wishes are those where a natural parent is contesting the guardian or where the guardian is obviously unfit to raise a child. A guardianship lasts until the orphan reaches his majority, which in many states is age 18.
There are two kinds of guardianships: of the person and of the property or the estate. A guardian of the person handles the children's day-to-day upbringing, while a guardian of the property manages whatever money you've left for the kids. A guardian of the property must submit an annual accounting to the court of how he's managing the assets and often must request permission to make various expenditures on behalf of the kids.
Lawyers recommend that, unless your estate is unusually large, you nominate only a guardian of the person and pass any assets along to your kids in a trust. The trust document, which should be drawn by a lawyer, should spell out how you want the money spent--on schooling, clothes, music lessons and so forth. A trustee then can write checks up to limits set by the trust without having to ask the court for approval. Ideally, the guardian should be a trustee, perhaps along with a bank officer.
When Helen Burns became the guardian of her good friend Donna Rogers' four children about nine years ago, she discovered that the children's grandparents were the trustees.
"It's very awkward for everyone," says Burns, who has two children of her own and is a communications consultant in Atlanta. "I have to prove I need every bit of money I spend. My milk bill is $50 a month, and the amount that four young adults can eat is mind-blowing."
Choose someone who is about your age; grandparents are usually not suitable candidates to raise young children. Younger relatives often are, because of what Richard A. Gardner, a psychiatrist who practices in Cresskill, N.J., calls "the psychological power of biological ties." When the child is your sister's or brother's or cousin's, Gardner says, everyone benefits from the family link. If you are not close to your family, pick a person who would bring up your children the way you would.
Make sure you ask the people you have in mind whether they would be willing to take on the responsibilities of guardianship. Burns recalls that when Donna Rogers asked her to be a guardian, "She told me, 'There are four children. Are you sure you can handle it? Don't answer me for two weeks.' "
Discuss with the guardians the financial arrangements you've made for the children and how you want them brought up. Jay and Francoise Theise named Francoise's sister and brother-in-law, who live in Paris, as guardians of their two children.
"They said yes after many, many hours of discussion," says Jay, who made it clear that his children should "pursue their Jewishness, receive all the education they want and visit the United States once a year."
A guardian named in the will is under no legal obligation to accept the responsibility and can refuse it. If he does, the court will have to find another person, who may not be someone you'd choose. For that reason, attorneys recommend that you also name a backup guardian in your will.
Children, too, have the right to know who their guardian is going to be. Consult older children before you make a decision. You may be surprised to hear one of them say: "I've never told you, but I can't stand Aunt Sally." In many jurisdictions, a child of 14 or older can challenge your nominee and ask that he be changed. Courts listen to the child, but they tend to abide by the wishes of the parents as expressed in the will.
If you as a guardian have children of your own, find out how they'd feel about having other children in the household. Burns' two kids had difficulty adjusting to her four wards.
"The first month or two was like a big house party," she recalls. "They were so close in age. Then we went through a period of a little war. Next they fell in love with each other. This was something I hadn't anticipated at all, but we had boys and girls in puberty in the house at the same time." Only after four or five years did the six begin to think of themselves as brothers and sisters.
Every few years, or whenever personal or financial circumstances change, review the guardianship provisions in your will. If you think you should name a new guardian, tell the current one and draft a new will. Anyone mentioned in a will is notified when the document is probated, so if you replace a guardian in a codicil to your old will, you run the risk of embarrassing that person. Once you have taken care of the legal and personal aspects of guardianship, you can relax, safe in the actuarial statistics that say your careful plans for your children will never be put into practice.
Copyright (c) 1983, Money Magazine