Why You Need to Appoint a Guardian for Your Children Now

“The single most irresponsible thing any parent can do is not appoint a guardian for their child.”

And so began my introduction to practicing the area of law known as trusts and estates. I had just become an attorney and as part of a “lunch and learn” the individual was both a very experienced lawyer and a mother, so I quickly concluded that she had a firm foundation to make that pronouncement.

Although I had no children at the time, the intensity of her emotion that day had such an impact on me that her statement is always the foremost thought in my mind whenever I meet with clients who have minor children.

But she also knew, as do I, that choosing a guardian is no easy task. In your mind, no one is good enough to replace you. While we all can agree with that belief, it is not a valid reason to do nothing.

And, we all also know that it doesn’t matter how young and healthy you are, the worst really can happen. True, it may be extremely unlikely, but just in case – and for your peace of mind – you absolutely must be prepared.

If you are not already convinced that appointing a guardian is something you really cannot put off any longer, please note that as with other aspects of estate planning IF YOU DON’T CHOOSE THE STATE CHOOSES FOR YOU! Not your family, your children’s godparents, or your best friend, but the State.

That alone should be reason enough for you to stop reading and immediately run to your attorney’s office. Still not convinced? Then let me elaborate on why this is not a good option for anyone.

Firstly, although the standard that a court uses in choosing a guardian is what is in the best interest of the child, what you know is best for your child and what the court believes is best may not be the same. While well-intended, the state doesn’t know your child, doesn’t know you, and will make a decision with limited information.

One not uncommon situation where this issue rears its ugly head is that of a blended family: you want your child to stay with your current spouse with whom they have lived for the past ten years, but under the law the court may favor your ex-spouse as the biological parent. That is not a risk I want my clients to take.

Secondly, in most jurisdictions the court system is overwhelmed and really doesn’t need to add another matter to its docket. Plus, given the procedures that by law the state must follow, choosing a guardian can be a lengthy process, exacerbating an already traumatic situation both for your children and the rest of your family.

Obviously, then, leaving it up to the government is far from ideal and the last thing that you want for your child.

Because I know that it is a difficult and emotional decision (having been in your position myself!) I would like to offer you some concrete considerations to help you determine who would be the best guardian for your wonderful children.

1. Willingness and ability to take on the responsibility. You may be thinking that your best friends would be the ideal substitute parents for your children – they have similar values to yours, your children know, respect and are comfortable with them, and their own children seem happy and well-adjusted. But as you well know raising a child is a HUGE responsibility, so you need to be certain that whoever you choose has thought it through, and is willing and able to accept what may be a lifelong commitment.

2. Financial means. Do the prospective guardians have the resources to take on the significant financial burden of raising a child? If not, do you have sufficient assets or a life insurance policy that could be put into a trust to pay for their expenses? Or, perhaps your parents have the means but are not able to be legal guardians to a trio of high- energy, grade-school-age boys? Please do not let imperfect finances deter you from making a decision – there are ways to structure your estate plan to allow for hybrid solutions.

3. Location. Most parents would like their children to be able to stay in the family home, or at least in the same vicinity. Your sister and her husband may be wonderful – but they live on the other side of the country. Uprooting and moving your children to another state away from their friends, schools, and everything familiar can make losing their parents all the more devastating. Is it possible for your sister and her husband to move in with your children? Or is there another option that can keep your children close to their home?

4. Family dynamics. Some parents are concerned that if they choose a friend over a relative it will cause a rift in the family, possibly causing their children to lose a relationship with an aunt, uncle or grandparent. If that is a concern, just remember that the best interest of your child is ultimately what matters most, and your family should understand that.

While no guardian will be perfect, choosing someone imperfect is better than choosing no one. So, I strongly encourage you to give making this decision a top priority on your never-ending “to do” list.

A final point to keep in mind: choosing a guardian today does NOT mean that it is written in stone. You CAN change your mind. In fact, like estate planning in general, your decisions

regarding your children are something you should review every five or so years, and any time a major life event occurs.

So, don’t put it off and call your lawyer. Or call me. I get it, and am happy to help you think through who would be (second) best at raising your precious children if, God forbid, something happens to you.

With sincere gratitude,

Alessandra, Mom and Attorney




The Law Offices of Alessandra M. Messineo Long, LLC