SELECTING A CHILD'S GUARDIAN
Copyright 2001 - Thomas J. Keating, IV, All Rights Reserved
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Every age and stage of life brings with it a particular set of problems and concerns. Among those faced by the parents of a minor child or children, in the estate planning context, is the question of who will raise the child to maturity if both of the parents should die or otherwise become unable to carry out their parental responsibilities. Experience suggests that, of all the questions facing the younger estate planning client, this is by far the most vexing, the one which causes the greatest concern, and, alas, also the one which gives rise to the largest number of disagreements between spouses.
Clearly, from the child's perspective, the optimum result would occur if both parents remain, as a nuclear family, alive and well and able to raise the child completely. Here, however, we are explicitly considering a non-optimum scenario, and the question then becomes what person or persons, in the parents' absence, might best be selected to carry out this crucial task.
BACKGROUND THOUGHTS
Let me begin with a definition. We are primarily discussing here the appointment, by the parents' Wills, of one or more persons to serve as "guardians of the person" of their minor child or children. This, as the name suggests, is a personal, not a fiduciary, role. That is not to say that the persons chosen as guardians of the person may not also, in specific cases, have fiduciary duties (e.g. as personal representative, trustee, etc.) as well, but that issue and those duties are very different and are dealt with elsewhere on this Site. Under the laws of most states, the surviving parent of a minor child may designate, by Will, one or more guardians (and successor guardians, if necessary) of the person of the minor child, and this selection is generally not subject to review or approval by any Court.
What we are talking about, quite narrowly but nonetheless importantly, is the day-to-day upbringing of the child; (a) providing a secure and loving home, (b) serving as adult role models, (c) meting out supervision, encouragement and discipline as needed, (d) attending to the child's social and intellectual development, (e) helping the child with crucial decisions of adolescence and beyond, (f) assisting the child with educational and career decisions, and generally serving, as our Roman ancestors used to say, "in loco parentis" to the child.
THE QUALIFICATIONS
In casting about for suitable candidates to play this role, the estate planning parents should consider a number of highly subjective criteria. At the head of the list would of course be good character, followed by sound judgment, experience with and/or affinity for young persons, a responsible and purposeful lifestyle, a sense of balance and proportion, and an absence of overt psychological or personality problems. Finally, and crucially importantly, an expressed willingness to serve if the need should arise. Less important, as I view it, are such things as social standing, economic position and educational attainment, although, as to the latter, it would be unfortunate if a lack of formal education were accompanied by a disregard or scorn for education.
Another quality that the appointees will need, eventually, is staying power. Parenting can be at times a thankless task, and your appointees should not be ones who will quit their posts in adversity, but will see the project through to completion, whatever the provocation and the temptation to do otherwise. Children can be both willful and wayward, and you should alert the appointees to this possibility, and also, importantly, make sure that your financial arrangements for the child do not inadvertently facilitate or subsidize such willfulness and/or waywardness as the child may already be disposed to. You should discuss with your advisors the various tools which could be given to your trustees to enable them to respond appropriately if a child exhibits undesirable tendencies of this sort.
One of my reasons for emphasizing the importance of staying power and stability in the choice of guardian is a concern for possible psychological damage to the child if the guardian should quit. No matter how rational and well-motivated the guardian's decision may be, it could trigger possible feelings of abandonment or unworthiness in the child, with resulting damage. Particularly if the child/guardian relationship has been a good one, it could be, coming on the heels of the parents' deaths, a troubling episode in the child's life. For this reason, the candidates' fortitude becomes an issue; if he sustains some adversity in his personal, marital, business or economic life - will he have sufficient resilience to continue in his role as guardian?
Another concern is that the later separation or divorce of an appointed guardian may destroy the domestic infrastructure on which the guardian depends to provide a home for the minor child. This of course is not always an issue, and tends to be less of one as the child approaches maturity, but particularly with younger children it can heavily compromise the guardian's ability to serve in that capacity. For this reason, a shaky marriage should also be carefully considered, and possibly also treated as a disqualification.
Over the years, I have searched for a single "touchstone" qualification, and was not happy with any of the ones which occurred to me, until I realized that the over-arching consideration that I had been searching for was simply this. The estate planning parents should select, as guardian(s) of the person of their minor child, that individual or individuals who would most likely, in their judgment, raise the child to become the same person he would have become had the parents themselves remained alive. That is, after all, the underlying goal, to try to insure that the parents' deaths, while undoubtedly traumatic for the child, will not result in the child's future becoming compromised.
THE PROCESS
Once you have tentatively made your choices regarding this appointment, you should have, as our friends in the diplomatic corps say, "a full and frank discussion" with the prospective appointees, to determine if they are willing to serve if called upon. Needless to say, you should not make light of the nature and extent of the responsibilities. Experience suggests that while most people are flattered to be asked to assume this duty, it truly is a daunting responsibility, and it is well for both the appointors and the appointees to approach it thus.
Further, if the appointees do not live close to you, you should make an effort to stay in touch with them in the future, to see if their lives have changed in any way which would cause them to become an unsuitable choice. Particularly if the appointees do not have children of their own, they may not realize what they are letting themselves in for, and if they develop, after your death, a case of "buyer's remorse", it will be too late for you to do anything about it. Based on my observation that children train their parents about as much as vice versa, it could prove problematic to dump a couple of partly grown children into the laps of a couple who have had no children of their own. Sort of like their having to get into a war several years after the other combatants have been at it --- everyone else knows the ropes and you do not --- on-the-job training of the grimmest sort. I leave it to you to imagine what sport a lively eight year old can make at the expense of a couple of rookie guardians.
THE CANDIDATES
A frequently recurring question is whether or not one or another of the child's grandparents should be selected as guardian. Indeed, some grandparents seem to assume that they have a sort of preferred status in this regard, and become quite agitated if they are not selected. The law, however, recognizes no such preference and the task is to do what is best for the child, not what is most gratifying to the grandparents. The answer to that question is highly variable, and depends a good deal on the facts of the case. If the grandparents are comparatively young and healthy, and the grandchild is at least close to adolescence, and if there is an existing bond and/or significant commonality of viewpoints between the two generations, it can work acceptably well. Where, however, there is a great gap in age, there may also be great gaps in attitude and outlook on life, which can present problems. Also, if the youngster is the obstreperous sort, the question of physical discipline then becomes problematic, unless the grandparents are exceptionally fit and determined. On balance, it is probably not an optimum choice in most cases.
In my experience, one or another of the parents' own siblings (e.g. the aunts/uncles of the minor child) are most often chosen, at least primarily, as prospective guardians for the children. The most common level of competition for the post is between (let us say) the husband's favorite sister and the wife's favorite brother. Another common scenario is that the parents' siblings are deemed acceptable, but the spouses of the siblings less so (e.g. "your brother is a nice guy but I can't stand that woman he's married to"). Clearly, although there is only one actual guardian serving at a time, that guardian's spouse will inescapably have a significant role to play, if not a legally recognized one, and the choice has to be made with that in view. Accordingly, a hopelessly unacceptable spouse would almost always serve as a disqualifying factor.
In some cases the minor child's own older siblings may be suitable appointees. This possibility has become increasingly rare in this age of smaller families, however, because the likelihood of a significant age differential between the oldest and the youngest children is much reduced, but it can be a good solution in the right circumstances. The one thing that I would have concern for in such an arrangement is the degree of moral authority accorded by the younger to the older sibling, but this is a factor the parents will have to assess for themselves if that is the direction in which their preference lies.
Finally, a word about unrelated persons. In the right circumstances, a personal friend, a business associate, or some other person not related to the family, can be the right choice, but the instinctive affinities reflected in the old saying that "blood is thicker than water" will usually militate in favor of selecting some relative, even one with marginal qualifications, over a non-relative.
OTHER THOUGHTS
In most cases, significant logistics and/or economic issues will arise for the guardians at the time they are called upon to assume their duties. Obvious areas of impact will be housing, schooling, transportation, general household expenses, and probably a host of other things that I do not have the imagination (or the courage) to foresee. It can be fairly predicted that, at a minimum, the arrival of one or more new children in a household will be a hugely unsettling event, both for the guardians themselves and any minor children of their own. Various television sitcoms have been built around this scenario, but there is nothing comical, I suspect, about the domestic stresses and strains that will have to be addressed in real life.
Curiously, it occurs to me in this context that the experience might actually be a good one for your child, in that he or she may feel a greater need to please the guardian than he or she felt to please you, and, as learning how to please others is, even in these selfish and self-centered times, widely acknowledged to be one of life's more useful skills, this could have quite a positive long-term effect.
A question for the parents who have quite a number of children (let us say, three or more) is whether the children should be split up and go to separate homes. Instinct and emotion vigorously say no, but practical difficulties may effectively require that result. I am not enough of a psychologist to guess what the pluses and minuses of such an outcome might be for the children involved; my layman's guess is that it would be somewhat negative but not hopelessly so. At any rate, as most families are now far smaller than they used to be, this is an increasingly rare problem
ECONOMIC ISSUES
The one major subject remaining to be covered is the question of the interplay between (a) the guardian, and (b) whomever is managing the child's financial resources (usually a trustee). The financial terms, which would typically be set forth in your Will, will determine how much flexibility exists with regard to the payment of income and/or principal for the child's expenses.
Probably the soundest philosophy in designing the trust provisions is to select the trustee wisely (see www.tjkiv.com/select), and give the trustee ample authority to adjust to circumstances as they are presented. A question arises as to whether the creator of the trust (the parents) should furnish the trustee any sort of statement of purpose, and there is no universal answer to that, but if such a statement is provided it should probably (a) be couched in broad and general terms, and (b) be made precatory (that is, advisory) rather than controlling.
An issue which frequently arises is the question of payments from the trust which would benefit the guardian, individually. Such payments might be (a) to add living space to the guardian's residence or to purchase a larger residence to accommodate the enlarged "family", (b) to purchase additional furniture or furnishings for the larger residence, or (c) to subsidize a change of career or employment to facilitate that person's serving as guardian. All of these sorts of payments might appear, at least superficially, to make good sense, but thought must be given to the question of how to guard against the possibility of a subsequent resignation of the guardian, after the disbursements have occurred. This can be a difficult balancing act, and one which illustrates why, in many cases, it is not a good idea to have the guardian and the trustee be the same person.
Another issue which may arise, albeit on a personal rather than a legal level, is the result of a disparity in economic position between your child and the guardian's own child. At very young ages, the issue is not apt to present a problem, but as children grow older, and have opportunities for elective social, educational or travel experiences, such disparity may prove awkward and uncomfortable.
The designing of trust provisions for the benefit of minor children is really beyond the intended scope of this brief treatment, but some of the more basic questions will be as follows:
1. Whether to administer the several children's inheritance as a single fund from which payments can be made, as needed, without equal disbursements being made for all of the children, or whether, on the other hand, each child should have a separate individual share of the estate.
2. Whether access to the principal of the trust (assuming income alone is insufficient) should be permitted, and, if so, whether it should be on a stringent, a liberal, or some intermediate, basis.
3. At what age or ages should the children (by then grown) be allowed unrestricted access to a portion or all of the trust property.
4. At what age or ages, if any, should the children be allowed to control what happens to the trust property should they die prior to receiving it in their own right.
5. At what point in the children's lives, if any, should the trustee be given the authority to terminate the trust and distribute the trust property to the children.
The principal factors to be taken into account in making these and related decisions are partly factual (e.g. the composition and anticipated value of the children's inheritance, the number and present ages of the children, any special needs (disabilities) which must be provided for, etc.) and partly personal and judgmental (e.g. whether to exhaust the inheritance by lavish expenditures for upbringing and education, or whether to economize on upbringing and education in an attempt to preserve capital for the children's long-term financial security). You and your advisors can, with care, devise a plan which will accomplish your objectives as nearly as is reasonably possible.
IN CONCLUSION
Now that you see on paper just a bit of what can be involved in making this choice, it will not surprise you to learn that parents of minor children, particularly young children, have such a difficult time of it.
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