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Patricia Annino
Patricia Annino
Picking Guardians for Young Children?
Why it is such an estate planning obstacle.

July 21, 2011
by Patricia Annino, JD, LLM

In my 27 years of estate planning, I’ve found choosing a guardian for young children to be the most difficult decision for couples to agree on and the most common reason why they either don’t complete or keep revising their estate-planning documents. It is important that your clients start on the estate planning path sooner rather than later. As the CPA and trusted advisor you are in a prime position to begin this vital conversation and help them reach a decision.

Guardian Selection Criteria

Factors to consider in selecting guardian(s) include the maturity of the person, whether he/she has a true concern for the children’s welfare and whether he/she has the ability and time to handle the extra responsibilities. Analyze what would happen if your clients added their children to the suggested guardian’s household? Do they have children close to their own children’s ages? Do they share your clients’ religious focus, moral beliefs and overall value system? Are they willing to take on the responsibility of raising your client’s children?

Being a guardian is a legal responsibility. The guardian will decide everything from where the children live, what schools they attend, where they worship and what kind of medical care they receive.

Your clients should come to as good a decision as they can, knowing that they can always change it. But they need to make this decision now. If they put off choosing a guardian and they both die while their children are minors, anyone who is interested can ask the court to be appointed guardian. The judge will then decide, without the benefit of their input, who will do the best job of raising your client’s children. The person the judge chooses may not even be someone on their “short list” of possibilities!

Should your clients appoint a person or a couple?

Do they want to name a sister as their child’s guardian or should they name that sister and brother-in-law? There are pros and cons to either decision. If they name just one, the other may harbor resentment and never fully participate in the child’s upbringing. On the other hand, if they name both people in the couple to be guardians and the couple divorce, then the child will be part of that divorce proceeding.

Suggest to your clients that they name successor guardians, if at all possible. Their first choice may not be in the right phase of life to act as a result of divorce, disability, financial hardship or problems with their own teenagers. Having successors named makes it easier for everyone.

This is probably the most emotional decision your clients will have to make in the estate-planning process. The exercises below are designed to help your clients find the answers to the question of who they want to take over parenting responsibilities:

1. Examine Your Priorities.

The act of parenting involves many different types of activities, responsibilities, value systems and rituals, many of which are done instinctively with little analysis or introspection.

However, when considering how you want your children to be raised if you are not going to be the one raising them, you should take a long hard look at the qualities you want your substitute to bring to the role as parent and evaluate the relative importance of each of those qualities.

a) Family. How important is “keeping it in the family?” Are blood ties paramount? Do you come from a close-knit family that prides itself on bonding together in times of trouble and “being there” for its own? Do you feel that naming a relative as guardian of your children will keep them in the nest and come closest to duplicating your parenting style?

b) Finances. You will, as part of your estate planning, take steps to provide your children with enough money in case you die early, to provide the lifestyle you desire for them. Does this lifestyle match that of the guardian? Will your children be living as “poor relatives” in a wealthier guardian’s home? Or will they be able to enjoy greater material benefits than the guardian’s own children, thereby creating tensions? Is the guardian you are choosing financially stable enough to assume this new responsibility?

c) Lifestyle. City life vs. country life; staying in the same community versus moving; emphasizing outdoor sports vs. emphasizing academics; relaxed supervision vs. strict discipline: What are the lifestyle choices you have made in raising your children and how important is it to you to choose a guardian who will replicate them?

d) Love. They say no one can love you as passionately as your own parents, but some guardians will come closer than others. How important do you feel heartfelt affection is in child rearing and how important is it to you to choose a guardian you believe will offer your child unconditional love?

e) Religion. If religion has been a backbone of your parenting, can you be sure the guardian you choose will perpetuate the traditions and teachings you have inculcated? Would it bother you if the guardian you choose brings up your children in a different religious faith? How important to you is a religious match in choosing a guardian?

f) Stability. How emotionally stable is the person you are choosing to care for your children? How strong is that person’s marriage? Employment record? Position in the community? How good is that person’s health? Is age a factor?

g) Time. How needy for attention are your children and what priority do you want the raising of your children to assume in the guardian’s life? Are they workaholics? Overcommitted to community activities? Preoccupied with their problems and responsibilities?

h) Temperament. Is it important to have a mood-match in choosing a guardian and if so, do your children need a soft, loving embrace and an emotionally sensitive attitude or will it take the personality of a drill sergeant to get them to finish their homework? Do they expect outward shows of affection or cringe at them? Is the person you are considering too moody, irritable or self-absorbed to come through?

i) Values. How important are the moral, religious, social, racial and political values your clients have tried to pass on to their children and how important is it to them that the guardian shares them and continues the teaching?

2. Evaluate Your Client’s Child’s Priorities.

Your client’s guardian decision will probably need to be updated as their children grow because their needs vary greatly from one stage of life to another. For example, the nurturing adoration of a grandparent that makes a four-year old feel loved and secure may suffocate a teenager. At some ages, being able to continue living in the same neighborhood with the same friends and going to the same school is far more important than living with a beloved aunt and uncle.

Rate the relative importance of the different guardian characteristics listed above, but this time examine them in terms of what your clients see as their child’s priorities rather than their own. If your clients have more than one child, they should rate each one’s priorities separately and compare the results, searching for a compromise.

Conclusion

As your client’s decision becomes clear about their priorities and their children’s, it will be easier for them to choose guardians now and give them the peace of mind that their children are protected, no matter what happens to them.

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Patricia M. Annino, JD, LLM the Estate Planning practice group at Prince, Lobel, Glovsky & Tye LLP. She is a Fellow of the American College of Trust and Estates Counsel.

* The AICPA’s PFP Section provides information, tools, advocacy and guidance to CPAs who specialize in providing tax, retirement, estate, risk management and investment advice to individuals and their closely held entities. All members of the AICPA are eligible to join the PFP section. For CPAs who want to demonstrate their expertise in this subject matter apply to become a PFS Credential holder.