Most parents don’t want to even entertain the notion of not being around for their children. It might be too sad to consider so they put the decision to name a guardian to the side. Or perhaps the parents are too busy and think it’s something they’ll get around to when they can find the time. Even parents who want to name a guardian face the issue of deciding who would essentially play the role they have now as a parent—caring for the children, acting in their best interests, and providing for them physically, emotionally, psychologically, spiritually, and culturally.
We’ll address these three reasons people put off naming a guardian, and how you can help you clients overcome each one of them. But first, here’s a primer on guardianship.
A person must name a guardian, and ideally an alternate guardian, in their Will. Regardless of what they’ve said aloud, or even written on paper, if it’s not in a Will it will most likely not hold up in court. If your client dies without a Will, or fails to name a guardian, a judge will determine who should get custody.
If the child's other parent is still alive (whether they’re still married or not), the court will usually grant custody to that person. However, if the child's other parent is unfit, unwilling, or otherwise unable to care for the child, the court will appoint someone they think will best serve the child.
Guardian of the Person: This person becomes the de facto parent and is responsible for child rearing or care for a special needs adult.
Guardian of the Estate: This person handles the finances for the child or special needs adult. Your client may choose one person to fill both these roles or they may choose different people for each role if they feel the guardian of the person is incapable of properly handling finances.
Like most things in life that involve legal intervention, guardianship can be complicated. Just because your client named someone in their Will doesn't mean that person will definitely get the role. Unlike material possessions, a child isn't property and can't simply be bequeathed to another person, which is why the courts get involved.
A judge will have the ultimate say in deciding your child's guardian. Don't let this discourage your client. Their opinion on who should get custody matters very much to the court, and the person named in your Will should take priority in the judge's mind.
This is where you as a professional have to help your client see the practical side of the situation. You need to make it clear: If they don’t name a guardian, they’re leaving it up to the courts, and there’s a high likelihood that their child will be placed with a relative.
Various members of the same family may have very different views on how to raise children, and the relative who might be mandated by law to become guardian in the absence of a Will may not have the means or proper environment to make a good home for their child. By naming a guardian your client maintains control. They can name someone they trust, or who they know in their heart will benefit the child.
Once you show your client how this is a practical and responsible decision they need to make, they will hopefully get past this emotional barricade and get the process started.
This is probably the most common excuse used, and it’s understandable. Time slips away so fast when tasked with raising young kids. This is where your professionalism is key because you can help point them in the right direction.
As you know, creating a Will isn’t nearly as difficult as it seems. You can refer an estate attorney or offer an online solution depending on the complexity of their estate. This is something you should note in their file: Do they have a Will and have they named a guardian for their kids?
If the answer is no, then make it your mission to stay on them until they complete this task. You might even be able to pull stories for your personal experiences as to what can happen if they don’t name a guardian.
If the answer is yes, then periodically ask them to review their Will and make sure everything is still to their satisfaction. If a guardian moved away, or someone else is a better fit, they’ll be thankful you helped them update their estate plan.
We saved the biggest hurdle for last. How many parents want to name a guardian but just can’t figure out who it should be? Most parents labor (and possibly argue) over what to name their child, so picking another person who might need to raise them isn’t something they’ll take lightly.
Since it’s almost impossible for you to help your clients make the actual decision, and not really your place to do so, provide your client with these points to help them narrow the field:
Providing these points to your client will help to demystify the process and allow them to logically think about what a guardian will do and who in their life best fits the mold.
While we’ve established it’s not your job to pick a guardian for them, you can make it your place to help guide them through the process by clearing a path and eliminating all the reasons, excuses, and fears they currently have. By focusing on the practicality and helping your clients make a decision as important as guardianship, you’ll show that you genuinely care about their family beyond the numbers.
This also gives you a chance to get to know their family on a deeper level, as well as members of the extended family who may one day be tasked with caring for the children. If something unfortunate occurs and the guardian must become the primary caregiver, you can provide continuity during the transition. On a business level, these are all potential clients for generations to come. On a personal level, you can rest easy knowing you helped a family overcome a very difficult situation.