What a horrid thought. Try asking this question to a Nigerian
and they are likely to break into chants of prayer; you are not supposed to
mention things like that. The writing of a will or any talk of death at all,
almost feels like you are courting or tempting fate.
Deciding on a legal guardian designated to care for your minor
children if you should die, or worse still if your spouse or partner dies as
well, is one of the most important decisions you will ever face as a parent.
Don’t just assume that our extended family social system will make things easy
and your mother or perhaps your brother will automatically receive custody.
Unless you specifically name a guardian in your will, a family member can step
forward and the court will determine who is the most appropriate to perform the
role. Here are some issues to consider as you choose a guardian.
What is the guardian’s
family situation?
How many children does your candidate already have and what are
their ages? It would be ideal if the potential guardian has children of a
similar age to yours, so that they grow up together. Do you wish for your child
to be raised by a single sibling or friend, a single parent, a married couple
with or without children? There are so many possible scenarios.
Where does the guardian live, and is this is in line with your
plans for your children? The most likely thing to happen is that your children
will have to leave their home to move in with the guardian. Can their home
accommodate their family and yours? Will your child have to move far away from
familiar friends and surroundings? Will your children be separated? The most
important thing, is for your child to be brought up in a warm nurturing
environment that is conducive for a child that has already been traumatized by
such terrible loss.
Do the guardian’s values
and beliefs reflect yours?
If the potential guardian is already a parent, then you would
have already observed the way they are bringing up their own children. What is
their own background and how were they raised? Do their parenting style,
values, and religious beliefs reflect yours? Granted, you can never find
someone with exactly the same beliefs and standards as you, but what is their
faith and what are their views on discipline, ethics, education, sports, music,
and social values? Remember, this candidate is the person who you will be
trusting to shape your children’s lives in your absence.
How old is the guardian?
An older guardian is more likely to be financially secure and
thus able to afford to raise your children. Grandparents are often an ideal choice
particularly if they are well and strong, or relatively young; they are also
likely to have the time required to properly oversea the child. If the guardian
is too old however, their state of health may become an issue and they may
become ill or even die before the children become adults.
If you want your parents to be your child’s guardian, but fear
that they will be too old as time goes by, you can specify that they be
designated guardians for a set period of time after which responsibility can
then pass to a younger person. Be conscious of the fact, however, that a
younger guardian, such as an adult sibling may be a student or may be too
involved in beginning a career or starting a family to pay enough attention to
your children.
Guardians and money matters
It is important to consider a guardian’s financial situation.
Practical issues such as the guardians housing and transport situation, food
and clothing, medical expenses and most importantly education, must be
carefully thought through. Do they have a stable job and earn a steady income?
Can they comfortably cater for the additional mouths to feed?
Things could be awkward where the guardian does not measure up
to your own financial status. If they are experiencing financial difficulty or
there just isn’t enough money to go round, your child could be seen as a burden
and the guardian may be tempted to turn to your assets for the whole family.
Financial matters, however, should not necessarily be your primary
consideration and it would be a mistake to eliminate an ideal prospect from the
list because you don’t think they have the financial wherewithal to take care
of your children.
Remember, it is your responsibility to try to ensure that
raising your child does not become a financial strain on a guardian.
One hopes that you have adequate life insurance, or have saved
and invested and put a will or a trust in place. With proper estate planning
whilst you are alive, these issues would have been addressed. A trust can hold
the assets you pass to your children. It is a very flexible vehicle and allows
you to leave specific instructions as to how trust funds should be applied. The
trustee may thus be instructed to provide financial assistance to the guardian
to help offset the increased expenses, to extend their home or move to a larger
home and pay for other incidentals, such as special tuition, medical bills and
holidays.
On the other hand if your child is entitled to much more than
the children he or she lives with, this could also be an issue. For example,
your intention may be for your child to go to a private school whilst the
others don’t. If you can afford it, and the guardian is indeed the ideal
choice, you could in the will make some provision for the guardians children so
that the difference is not too glaring.
The simplest way to deal with money matters would be to give the
guardian access to money when needed without having to go back and forth to a
third party. But whilst someone might make an ideal guardian, they may not be
so good with money. It may be that the best home for your children would be
with your sister, yet your father may be the best person to make financial
decisions. Ideally one should have the children’s inheritance handled by a
professional trustee; such a separation of roles will provide some checks and
balances over how the money is spent. Remember to consider how well the
guardian and trustee can work together as disagreements may arise from time to
time.
Will the guardian accept
this responsibility?
Guardianship is a huge responsibility, and not everyone will
feel able to take up such a role. Narrow your list down to a few key people,
formally ask them and seek a firm response. As the years go by, revisit your
estate plan, as chosen guardians may decline or may no longer be appropriate as
circumstances change; perhaps they have become too old or your relationship
with them has changed. In your separate wills you and your spouse should name
the same person as guardian and family members should be advised of your
decision, to minimize the potential for conflict.
Remember, unless you name a guardian, it will be court’s role to
appoint a family member who applies and whom it deems appropriate. Worse still,
your children could end up being dumped on someone whom you are not particularly
fond of, or someone who is not keen on having them.
