Choosing a Guardian for Children: 12 Key Factors
Making sure someone will care for your children
Choosing a Guardian for Your Children or Child by an Estate Attorney in Towson & Hagerstown
Choosing a guardian for your minor children can be one of the most challenging decisions parents ever need to make. As a Maryland wills and estate planning attorney, parents often ask us to give our thoughts on how to make that important choice for your family.
An estate planning essential: choosing a guardian for your minor children
As a family with minor children, you want to make sure someone will take care of your kids if something happens to you and your spouse. That is why choosing a guardian is an important part of any estate plan when there is a family with children.
A guardian is a legal figure you can appoint to take care of your children if both parents pass away. You may choose to name a close family member or a trusted friend. With the right guardian in place, you can feel secure knowing someone will take care of your children no matter what happens. But how do you select a guardian that will be right one for your children?
Some lucky families know their obvious choice to be the guardian of their children. Others feel uncomfortable choosing from their relatives or friends. Still others have several choices for guardian and simply get stuck when deciding. No matter what your situation, you may still want to consider some of the following factors to know you make the correct choice for your family.
No one factor should determine whether someone would be a great guardian for your child. I will try to give positives and negatives to each, but I’ll leave it up to you to determine whether it applies to someone you are considering. For instance, having experience as a parent would obviously be a positive, but we all know people who have never had kids you know would be an incredible parent.
1. The age of your chosen guardian
You will usually want to choose a guardian for your children whose age and health would allow them to remain the guardian until your child is at least a young adult. The child already had to cope with losing their parents and the changes it caused. Having to deal with the death or decline of another parental figure would not be good for your child. You should be more concerned about the guardian’s age and health if they would be caring for a baby or young child.
A younger guardian will have the energy and physical requirements for the job. You also would hope the guardian will be there for your child long after they turn 18. Even an older child would be better off having a guardian that they can expect to have around as a young adult years for guidance.
2. Familiarity with your child
If you died without a will, you gave up your opportunity to name the children’s guardian. Someone you may not have wanted may be the first to the courthouse to be appointed. The person you wanted may not even know to do so.
3. Experience with kids
You may want to choose someone from your search with experience raising children. We all recall the huge lifestyle changes our family went through when we became parents. The guardian may have to go through that change while also having to deal with a child with a developed personality and that also just experienced the loss of a parent. Experience could help both the guardian and child cope with the change. On the other hand, we all know someone who would have been an excellent parent but never had the opportunity. That person would still be a great choice.
4. Stability of the guardian’s home
The guardian will hopefully have a family home that is stable. If the guardian is married, you will want the guardian’s relationship with their spouse to be healthy. While you may choose one person to be the guardian, the children will get a package deal of those the guardian associates with.
5. Financial stability of the family
While you may leave an inheritance, life insurance money and other things to your children, the guardian’s finances could still cause stress in the home. Though you may leave more than enough to care for your children, the guardian’s household can have unrelated financial issues.
6. Employment stability and time requirements
Consider the time and other requirements of the potential guardian’s career when choosing guardians for your children. All other things being the same, your family would prefer a guardian whose job does not have travel requirements, late hours, or stress. These requirements could affect the time available to handle your children as well. Your family may also want to consider the potential guardian’s employment history. If the guardian continues to have such issues, then this can certainly cause stress for the household and your child.
7. Environment: their family and other people who will be role models
Your family will probably want to consider the people that your guardian associates with when making your decision. Sometimes those people likely will be out of the picture once the guardian has a child to care for. In other cases, that person may be a permanent member of the guardian’s household that will be around to be an influence on your children.
8. Parenting style
Given your child’s personality, your family may believe they will perform a lot better if the guardian has a particular parenting style. You may believe your children need a strong disciplinarian. Or you may believe your children need a parent that will be emotionally supportive. You will need to consider your child’s personality and their needs in making this decision. Unless you have seen them in action as a parent, this is something that is difficult to know how they will be. But you hopefully would know their personality well enough to get have an idea. The most helpful thing will be to know how they interact with your children through experience.
9. Similar to your religious beliefs and values
Some may have very strong religious beliefs and want their children raised in a specific denomination. Even if not taken to that extreme, consider the person’s religious background and whether they share similar values. This may not mean whether they go to church every Sunday, having a similar moral base and celebrating Christmas may be sufficient for you.
10. Other children in their household
This could be a positive or a negative. On one hand, we’d like to think it would be a wonderful thing if your child could gain a new brother or sister. But, on the other, there could be a conflict between the children, jealousy from either group of children, and just a general lack of time for the guardian with more kids in the house.
Your family likely will want to consider the guardian’s location and the changes it will cause in the child’s life. A move across the country would obviously take the child away from everyone they know. A move to a different county would take them away from the other children they know. Significant moves would not allow them to visit their cousins and others who could create some normalcy in their lives.
12. Wanting to serve as your child’s guardian
The person you choose should want to serve as a guardian for your kids. You should reach out to the persons that you want to name as the guardian and get their approval to being named as guardians. While it is a big ask, most will consider it to be a tremendous honor that you think so highly of them. So, you should not be afraid to ask. Your primary concern will be to make sure they answer honestly and not trying to avoid disappointing you and your family.
We would never substitute our opinions for your own on who should be your children’s guardian. You could never trust the opinion of any person other than a parent on who would be your child’s best choice for being their guardian. You likely know your children and some other factors personal to your family that you likely need to consider as well. Hopefully, the factors provided above give your family some things to consider and help you make your decision.
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What happens if you don’t appoint your child’s guardians?
If your family does not appoint a guardian, your children’s guardian will be determined by a judge. Unfortunately, the judge will not be as familiar with your family, your children, or the person who takes it upon themself to apply to be guardian.
Even if the person your family wanted to be guardian applies to become guardian, the process will be more difficult for them without your having specifically chosen them for the guardianship. There is no guarantee the person you would have wanted to be the guardian would know they would have been your choice. Selecting a guardian for your child both informs the court of your choice and lets the guardians know they should step forward when needed.
Most people will second guess whether they would be the proper person to apply. For instance, if the person you would have wanted a close friend to be the guardian, without having been told so, they may assume you would have preferred a family member. Or, if the person you would have chosen was a cousin, they may assume the parents would have wanted your sister or brother to be the guardian. You can see how even willing guardians may not apply because they feel it is inappropriate for them to do so.
A judge could place your children in a poorly chosen home. The assets they inherit also will be under the control of that guardian and your child will have free access to the remaining assets when they turn 18. You and your spouse could have restricted their inheritance through a testamentary trust. Trusts allow a suitable adult to be its trustee that can invest and hold the inheritance. Trustees can distribute their trust’s property to the minor beneficiary when they believe it’s needed. Instead, intestacy law gives the children their entire legal inheritance at a vulnerable age.
What are the Maryland legal requirements for a guardianship of minor children?
In the State of Maryland, the parents may choose the legal guardian of their children. Maryland law requires you to appoint a guardian for your minor children using a last will and testament. Any legal document naming your guardian’s appointment could be considered a last will and testament by Maryland’s definition of a will. But any document making the guardianship appointment must meet all requirements needed for a valid last will and testament in the State of Maryland.
When you choose your guardian for your children, can something prevent them from being one?
Maryland legal requirements state that to serve as legal guardian of the person can never have been convicted of a felony, a crime of violence, as defined in MD Code Criminal §14–101; assault in the second degree; sexual offense in the third or fourth degree or attempted rape or sexual offense in the third or fourth degree. The same section of the code states that to serve as guardian of the property, the person can never have been convicted of any crime of moral cannot be appointed to be a guardian of the property if they had been convicted of a crime of moral turpitude, such as fraud.
A court can remove your guardians from their position if they abuse or neglect the powers of their guardianship. Of course, if that were the case, then you would want them removed as well. Like any other life choice, people can mess up when they choose a guadian for their children.
Can you limit a guardian’s powers when you choose your guardian?
While you may trust your chosen guardian with caring for your children, sometimes that person may not be great with money. Maryland gives you the option to name one person the guardian of the person and another as guardian of the property. If the grantor wants to limit or divide the guardianship, they most commonly divide it into the guardian of the person and guardian of the property. Lawyers and courts would know the meaning of that division.
Nonetheless, the Maryland law on guardianships states that, “Any limitation on the powers of a guardian contained in a will or other instrument which nominated a guardian should ordinarily be imposed by the court on the guardian.” So, it would be possible to make other reasonable limitations on the powers of your chosen guardian and likely grant that power to another.
Guardianship advice: let us guide you when you choose a guardian for your children through your estate planning.
Choosing a guardian will be one of the most crucial decisions you make as a parent. Ensure their well-being and security by proactively choosing a trusted individual with similar values to step into your shoes should the need arise. We are here to guide clients through this sensitive process, offering the support you need to make a decision that aligns with your values and priorities.
Take control of your family’s future—contact us now for expert advice on choosing a guardian for your children. Our experienced estate planning professionals understand the gravity of this decision, and we’re dedicated to helping you navigate it with care and confidence. Your family’s peace of mind starts with a well-thought-out estate plan that includes guardians chosen by you. Secure their tomorrow by making the right decisions today.
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