A guardian is a person who looks after and is legally responsible for someone who is unable to manage his or her own affairs. There are three main situations when a guardian may be needed: for a disabled person, an elderly person who is no longer able to care for themselves, or a child under 18 whose both parents become incapacitated or are deceased.
When I draft estate plans for my clients and they have children younger than 18 years old, I always recommend a provision be added to the wills that if something should happen to both parents, a guardian is named to care for the children. In the state of Illinois, if one parent becomes incapacitated or dies, the other parent typically becomes the sole custodian of the children. When having your wills drafted you must consider who would take guardianship of the children in the event both parents die at the same time. This person will make all future decisions for the children.
This can be a very difficult question to answer. When I am counseling people to help them decide, there are a few points that I present for consideration. First, I recommend choosing potential guardians who are not substantially older than the parents. Young clients commonly want to choose the child’s grandparents, however, historically speaking, the grandparents will become incapacitated or die before the parents, or before the grandchildren would attain the age 18.
Second, I recommend choosing someone who lives a similar lifestyle. Having your parents disappear is hard enough on the children. You want this difficult transition to be as easy as possible. Choosing someone with a similar lifestyle will make things easier on the children.
Finally, I recommend considering where the guardians live. Is their house big enough? Is the house close to other family? Is the house in the same or a better school district?
Choosing a guardian for your minor children might be one of the hardest questions to answer when completing your family estate plan. There are many considerations to think of when deciding who is the best possible choice for your children and it shouldn’t be taken lightly.