If parents with minor children die, a Guardian will be appointed to raise and care for the children. Parents have the right to designate who will be appointed Guardian--so long as the parents do so before they die. If they do not, then a court will make the decision.
I've practiced law in the Tampa Bay area for over thirty-five years. During that time, I've appeared before and gotten to know many judges serving in our court system. I can genuinely say for the most part, those judges are hard-working, dedicated, smart, and honest public servants. Despite this fact, as a parent and as an attorney representing parents, I would never want a judge to have to decide who would be Guardian for minor children. Parents should make that decision ahead of time so the judge can simply implement the parents' wishes.
This underscores one of the most important aspects of estate planning-i.e. designating a Guardian for minor children in the event of the death of the parents. Every parent with minor children should have a Last Will and Testament where they designate the Guardian or Guardians for their minor children. Not having this in place can ultimately mean that a judge will have to make the decision if the parents die. Despite my immense respect for our judiciary, this should not be a decision that a judge has to make when the parents can and should make that decision ahead of time. Parents know their children and have better insight into how they should be raised. A judge may or may not apply the same criteria as the parents in selecting a Guardian.
When selecting a Guardian for minor children, there are some important considerations for making that decision. You should designate:
- Someone you trust
- Someone who shares your values
- Someone who will honor your wishes in raising your children
- Someone your children know and with whom they are comfortable
- Someone who has longevity-meaning young and healthy enough to be around while your children grow to age of majority
- Someone who is financially and personally stable
- Someone who is nearby so your children will not have to relocate (personally, I believe this is of lesser importance than the considerations listed above)
When thinking about protecting your minor children, consulting an experienced estate planning attorney can assist in not only making these decisions but also making sure your documents will accomplish your objectives.