Why do I need to name a Guardian?

The decisions made for estate planning can be overwhelming. 

• Who do I trust to carry out my wishes?  
• Who is the most financially responsible?  
• Who will take the best care of great-grandma’s silver tea set?  

Perhaps one of the most daunting questions that face a couple with minor children is:

• Who do I trust to take care of my children if both my spouse and I are gone?  

So daunting is this question, that many parents avoid it altogether, and have no idea who they would list as a guardian, or if they each agree on the same people.  I am reminded of a story from a colleague that brings the importance of not only making this decision together as parents, but having the difficult discussion in the first place:

An 11 year old boy lost both parents in a tragic car accident.  Mom and Dad had seen an attorney to complete their estate planning, but had put off completion until after the trip that killed them.

Three people fought for guardianship of the boy:  An uncle, who was the “dark horse” because he lived out-of-state; an aunt who was very close to the boy, but has a loser husband and no stable home environment; and the biological father’s sister.  Biological father had given up all legal rights to the boy at birth.  Sister had no legal relation to the boy, and had no relationship with the boy at all.

Sister won guardianship. 

Based on an independent evaluator’s assessment, the court found that the boy should stay in the state, and that the aunt was too unstable.  No one was allowed to present evidence at the hearing.  It was based solely on the evaluator’s recommendation, which was accepted as gold.

The boy did not get to express his opinion or his desires in this matter, because he had not yet reached the magic age for which the court would listen and give weight to his wishes.  He was so upset at the prospect of living with someone he barely even knew, over the family that he knew and loved, that he spent the entire morning prior to the hearing throwing up.

No one knows what Mom and Dad would have wanted for this boy, because they had not discussed it between themselves, had not informed their attorney, and had put off executing documents that would have put the world, and the court, on notice of who they believed should raise their son.