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4 Steps to Choosing Your Child's Guardian — and Finding Yourself!
By Diedre Wachbrit, Attorney at Law
Choosing a person or family to care for your children is difficult. In fact, for many families, it's the hardest part of planning their estate. It's not easy to think of anyone else raising your child, no matter how loving they might be. Yet, you can make a tremendous difference in your child's life by planning ahead. And you have nothing to lose except a few moments thinking about what you value most in life, and in what constitutes proper child-rearing.

Anyone with a child under the age of 18 must consider who would raise that child if they were unable to. Of course, we all imagine the worst case scenario - our own premature deaths - when we mull this over. But there is a less tragic and more common situation in which naming a guardian is crucial: incapacity. If you and your spouse were unable to care for your children for a time, who would watch over them while you recovered your abilities? How would their education be supported? The younger your child, the more crucial this choice is, because very young children cannot form or express their own preferences about caregivers. Yet young children are not the only ones who benefit from careful parental attention to guardianship. Children close to 18 years old will be legal adults soon but, as you well know, a parent's job does not end when the child reaches 18. By naming and talking about your choice of guardian, you can encourage a lifelong bond with a caring family.

The nomination of guardians is a straightforward aspect of any family's estate plan. It can be as basic or detailed as you want. You can simply name the guardian who would act if both you and your spouse were unable to. Or you can provide detailed guidance about your children and the sort of experiences and family environment you would like for them. Your state court can then give strong weight to your expressed wishes.

A more detailed guardian nomination can be crucial for the homeschooling family. Whether you choose to name guardians who are prepared to homeschool your child themselves or you choose a family that would enroll your child in a school, you must tell these guardians what sort of schooling your children are used to and why. This will ease the transition to a homeschooling environment or a traditional school.

So how do you actually choose the right person or couple? Because you may have too many loving family members to count, how do you choose among them? Or you may be from small families and wonder if you can find anyone suitable. Either way, you can make a good choice by following four straightforward steps.

STEP #1: Make a list.

Make the longest list you possibly can of everyone you know who might possibly be a good guardian. When initially considering whether someone should be on the list ask yourself, "Would they provide a better home for my children than the foster care system?" If the answer is yes, put them down. If the answer is no, note that too for you may wish to express that under no circumstances should these people be made the guardians of your precious children. Your list could contain dozens of names but should have at least 3 or 4 people or couples before you call it a day.

Think beyond your sisters and brothers. Parents have chosen as guardians cousins, aunts & uncles, grandparents, child care providers, business partners, and friends. Consider long-time friends and those you've gotten to know at parenting groups. They may share similar philosophies about child-rearing. Do not eliminate people from your list for financial reasons unless they lack basic money management skills. Sufficient life insurance in a well-drafted Children's Trust (should this be in caps?) can ensure your children's material well being.

STEP #2: Decide what matters most.

Choose a few factors that are most important to you. Here are some to consider:

Educational Philosophy — Maturity — Patience — Stamina — Age — Child-rearing Philosophy — Presence of children in the home already — Interest in and relationship with your children — Integrity Stability — Ability to meet the physical demands of child care — Presence of enough "free" time to raise children Religion or Spirituality — Marital or family status — Potential conflicts of interest with your children — Willingness to serve — Social and moral habits and values — Willingness to adopt your children — Disciplinary practices

Obviously, the perfect choice would score highly on every measure. But because we are all imperfect, you will likely have more success in choosing the few characteristics that are most important to you. Consider as you make your choice that some factors can be influenced by you and others cannot. Integrity is something you cannot change. But if having an at-home parent is important to you, your prospective guardian might be willing to come home to raise your child if you make it possible through a well-structured and funded plan.

STEP #3: Match people to priorities.

Use the factors you chose in step two to narrow your list of candidates to a handful. Congratulations! You can relax knowing you have many good choices to choose from. Listen to your body and feelings as you consider each person or couple as guardian. You'll have to use your gut to rank order this short-list into the people you would want first, second, and so on. If you have named a couple to be guardians and assuming you have selected an attorney experienced in helping parents of minor children be prepared to answer the following questions: If the couple divorces or, because of death or incapacity, only one can serve, would you like either one to be guardian? Or would you prefer to move to the next name on the list?

For many families, it's as easy as it looks. For others, however, these three steps are fraught with conflict. One common source of difficulty is disagreement between spouses. Consensus is important. While you can each name different guardians, most parents are happier when they reach agreement. Explore the disagreements to see what information about values and people you should both understand. Use all your strongest communication skills and empathy to understand each other's position before you try to find a solution that you can both feel good about.

Regardless of which spouse's family or friends appear more frequently on your final list, it's important to keep both families involved. One way to do that is to name members of one family as guardians to care for the children, and members of the other family as trustees to manage the assets for the children. If there is a likelihood of conflict between these family members, be sure to share this with your attorney so that your guardianship can be customized to encourage them to keep the lines of communication open.

STEP #4: Make it positive.

For some parents, getting past this decision quickly is the best way to achieve peace of mind and happiness. For others, choosing a guardian can be the start of a more intensive relationship-building process. An attorney who understands where you and your spouse fall on that spectrum can counsel you appropriately.

For those who want to use the estate planning process as a life-enhancing inquiry, consider the following:

— Guardians, once they know how strongly you feel about their loving and good characters, may choose to become more involved with your children (as "godparents" do in some religions). If they are homeschoolers, they may become more deeply involved in your child's educational development.

— The focus on what you want for your children — regardless of whether you are there to provide it — can clarify your own parenting priorities, in addition to enabling you to create a highly customized estate plan that will convey your values. Why do you homeschool the way you do? What are the fundamental beliefs about people and, especially, about children that guide you?

— This last idea is not for the faint of heart. You can use planning for your children to consider the impermanent nature of relationships. What do you want to achieve with your children while they're still at home with you? What legacy do you want to leave for them when you say goodbye?

Although I have shared some ways choosing and nominating a guardian can be an intensive, life-changing process, you should know that it can also be the easiest "legal" issue you'll ever face. The nomination of guardianship itself can be a very brief document or just a paragraph in a will or a trust. So use this article as a resource as you make these tough decision, but take only what works for you. Nominating guardians need not be a life event. However you complete the process, you will find a new level of peace of mind.

Diedre Wachbrit is a homeschooling mother of twins, and an attorney in private practice in Thousand Oaks, California. Her practice is focused on helping parents protect their children through thoughtful and careful planning. All Link readers can receive her free guide: "Parents' Guide to Protecting Great Kids: how to build the safe, secure future all responsible parents want for their children" by emailing, visiting or calling 1-866-wachbri