Nominating Co-Guardians: Additional Considerations
When parents of minor children come to their first consultation with me for estate planning, one of their top concerns is often what will happen to their minor children if they die while the children are young. The solution is both simple and not.
The simple part is that estate plan documents can cover this, both in terms of:
Who will care for the children until they are adults (a Guardian, nominated in a parent's Will and appointed by a Court, and what this blog post focuses on), and
What will happen with their potential inheritance until they are old enough to manage it for themselves (a Testamentary Trust created in a parent's Will or a conditional subtrust in a Revocable Living Trust can hold the assets).
The challenging part is determining who to nominate as the Guardian for a minor child. Many parents want to nominate Co-Guardians — they pick a trusted married or partnered couple who could jointly become legally responsible for their child. Naming Co-Guardians makes emotional and practical sense, but this choice often fails to consider the risks associated with it.
For context, it's essential to understand the legal process by which a Court appoints a Guardian for a minor child:
A parental nomination of a Guardian for their minor child(ren) is not an automatic grant of authority. However, a parental nomination holds significant weight in the legal process.
The legal process where the Court appoints a Guardian only occurs if a minor child (a) has no living legal parents, or (b) their only living (or both of their living) parent is legally unable to fulfill their parental duties (due to capacity/competence issues or incarceration).
While prioritizing parental nominations for the Guardian, the Court makes the ultimate decision using the legal standard of what is in the child's best interest.*
The Court's involvement does not end with the appointment of a Guardian. Instead, oversight continues until the child reaches age 18.
When clients want to nominate a married/partnered couple as Co-Guardians for their minor child(ren), they need to consider three scenarios that will create difficulties for both the people they nominated and for their child(ren):
First, what happens if the married/partnered couple is no longer together, and the Court must appoint a Guardian for a minor child?
Second, what happens if one of the Co-Guardians dies (before being appointed or after)?
Third, what happens if the Court jointly appoints the married/partnered couple as Co-Guardians, but later they separate before the minor child turns 18?
In these scenarios, the Co-Guardianship will fail. I spoke with a colleague who is heavily involved in North Carolina Guardianship cases, and she (like me) strongly advises against Co-Guardianship (while acknowledging the various reasons why it initially seems like the most appropriate option to many parents). Her advice to her own estate planning clients is:
When trying to decide which member of the couple to name individually, the person who is legally related to a child (through genetics or adoption) will get some automatic preference by the Court. This preference can be a deciding factor when a Court considers two different guardians (who are not married/coupled) who are otherwise equally qualified.
If a client feels strongly that they need to name Co-Guardians, they must make two additional decisions and incorporate their answers into the wording of the Guardianship nomination: (a) If one of the Co-Guardians dies, are they comfortable with the survivor (no matter which person the survivor is) being the sole Guardian? and (b) In the event of divorce or separation, which person (not both) should be the sole Guardian?
No parent wants to consider a future where they do not live to see their child reach adulthood. And many parents struggle to determine who is the right person to nominate as a Guardian. Nominating a married/partnered couple as Co-Guardians often feels like the most loving and practical choice. However, the potential risks and complications that may arise can result in an outcome that differs from a parent's true intentions. Prioritizing a child's best interest with straightforward Guardianship nominations provides an easy roadmap for the Court to follow.
*What does the legal standard "child's best interest" mean? This determination prioritizes a child's overall well-being, including their physical and emotional health, safety, and stability. Some of the considerations include the child's relationships with potential Guardians, the consistency and stability of living arrangements, each potential Guardian's ability to provide care, any history of abuse or neglect, the child's own wishes, and (if applicable) the ability to keep siblings together.