Cautionary Tales - Choosing Guardians for Your Kids - Episode 205

Hey there, Legal Tea Listeners –This is your host, Jenny Rozelle! Today’s episode of Legal Tea is the “cautionary tales” topic. And on these “cautionary tales” episodes of Legal Tea, we normally talk about real-life cases with real-life clients that are things me or my office have worked on -or they are things that I think are generally good things to be aware of, so you don’t turn into a cautionary tale on my Legal Tea podcast one day! So today … we’re going to talk about what happens if young families / young parents fail to do estate planning, fail to designate guardians for their minor children, and then we are going to also talk about how to go about selecting guardians – that way, if you take estate planning seriously as a parent and face the “who do you want to be your child’s guardian?” you feel better prepared.

So, yeah – let’s talk about one of the hardest decisions young parents face: who would raise your kids if something happened to you? And I know, I know - nobody wants to think about this stuff. Most parents avoid this decision because it's uncomfortable and complex, but here's the thing - your kids need you to make it. So let's walk through how to think about selecting guardians for your estate plan, and why you really can't put this off any longer.

First, let me give you a reality check that might motivate you to actually do this. If you do not choose guardians, the court will choose for you. And judges don't know your family dynamics, your values, or what you would want for your children. They will make the best decision they can with the limited information they have, but it might not align with your wishes at all. Many lawyers have seen cases where kids ended up with relatives who barely knew them, or where siblings got separated because the court did not understand the family situation.

Now, before we dive into the practical stuff, I want you to start by accepting a hard truth: no one will love and care for your children exactly like you do. That person does not exist, and if you spend your time searching for them, you will likely only paralyze yourself. I see parents getting stuck here all the time – they will say things like "Well, my sister is great but she's not as patient as I am," or "My best friend would love them but she doesn't cook like I do." Stop right there. Once you accept this reality, you can shift from seeking perfection to finding someone who will love your kids deeply and raise them with genuine care. This mindset change is everything - it moves you from "I can't make this decision" mode to actually making productive choices.

So let's get practical now. Start by focusing on your values. What matters most in how your kids are raised? Is it religious beliefs? Educational priorities? Your discipline style? Whether they spend time outdoors? Family traditions? Write these things down because they're going to guide your decision. Let me give you a real example. I know a family who really prioritized education above everything else. Both parents were teachers, they read to their kids every night, limited screen time, the whole nine yards. They had to choose between grandparents who would spoil the kids rotten but did not quite value education like them, versus an aunt and uncle who were both professors. Even though the kids barely knew the aunt and uncle, the parents chose them because they trusted they'd prioritize their children's education. Remember, you're not looking for someone who parents exactly like you - that person doesn't exist. But you want someone who shares your core values and will honor what matters most to your family.

Now consider other practical stuff too like: the age and health of potential guardians. Are they financially stable? Where do they live geographically? How big is their existing family? Is their lifestyle and/or work schedule compatible with your kids? Let me give you an example here. A 70-year-old grandparent might be absolutely wonderful, but they may not have the energy to handle teenagers, and what happens when they're 80 and your kids are still in high school? Someone who already has five kids might be stretched too thin to take on more - I've seen families where the guardian had great intentions but just couldn't handle the logistics of suddenly having three more children.

Now, something to realize on this whole topic is … you can actually have different types of guardians. There's the Guardian of the Person who handles day-to-day care, and there's the Guardian of the Estate who manages the money and any inheritance. These can be the same person, OR they can be completely different people. Sometimes your best potential parent is not the best money manager, and this is totally okay. For example, let's say your brother would be amazing at raising your kids - he's patient, loving, shares your values, but he' is not great with money. Meanwhile, your sister is great with finances but travels constantly for work. You could name your brother as the Guardian of the Person and your sister as the Guardian of the Estate. This way, your brother raises the kids day-to-day, but your sister manages their inheritance. And actually … some feel that separating these roles can actually provide better protection and oversight for your children's interests.

One question I get a lot is whether to choose family or friends. Honestly, there is no right answer here. Your sister might share all your values but live across the country. Your best friend might be local but have completely different parenting styles. You need to consider what matters most for your specific situation. For example, I know one family where the obvious choice seemed to be the grandparents - they lived nearby, the kids saw them every week, they had a great relationship. But when they really thought about it, the grandparents were already in their late 60s and had very different ideas about discipline and screen time. They ended up choosing their best friends who lived two hours away but shared their parenting philosophy and were only in their 30s. So remember – sometimes the "obvious" choice is not actually the best choice when you really think it through.

Here's a crucial step that a lot of people skip: you absolutely should have "the conversation" before putting anyone in your estate plan as guardians for your kids. This is not a surprise you spring on people. You need to discuss your expectations, your parenting philosophy, and make sure they're genuinely willing and able to take on this responsibility. And, this conversation needs to be detailed. Talk about your discipline style, your kids' routines, their medical needs, their school preferences. Like, I know one family where the parents assumed the sister would be thrilled to take their kids. When they had the conversation, they discovered the sister was actually terrified of the responsibility and ended up choosing someone else who was genuinely excited about the role. So yes, this conversation may feel awkward, but it is absolutely essential. You might discover that your first choice is not actually willing or able to take on this responsibility, and it's better to find that out now rather than later.

On this – please, please choose backups. Your first choice may be willing when you ask them, but might not be available if they are actually needed. So be sure to list two or three options in order of preference. Life changes constantly - people move, get divorced, have health issues, their own kids grow up and move away. You need to plan for these contingencies. These choices, and this should go without being said, but here we are – needs to be in writing.

When it comes to putting things in writing, your Last Will and Testament, and in some cases your Power of Attorney, are the legal documents that matter most. But also something to seriously consider is creating a letter of instruction with details about your kids' routines, their preferences, medical information, all that stuff. Plan to update these documents regularly as kids and circumstances change. This letter of instruction letter can be invaluable - include everything from bedtime routines to favorite comfort foods. If something happens, I am certain the guardian will take ANY helpful information. Oh, and also include practical information: doctors' names and contact information, school contacts, insurance information, medication details, allergies, emergency contacts.

Look, we start to wrap this topic up, I get it. Nobody wants to think about this stuff. Death is really yucky for most people to think about. But once you make this decision, most people experience such peace of mind knowing that they have taken care of things – and for this topic, your kids' future. So, I encourage you to stop putting it off. Have those uncomfortable conversations. Make those hard choices. Your kids are counting on you to plan ahead, even for scenarios you hope never happen. And remember, you can ALWAYS change your mind. This is not a decision you are stuck with forever. As your life changes and your kids grow, you can update your documents, decisions, etc. The important thing is to make a decision, even if it's not perfect.

At the end of the day, after everything we have discussed about the importance of thoughtfully choosing a guardian for your children, here’s the bottom line: if you don’t make that decision yourself through proper estate planning, the court will make it for you. A judge—who does not know you, your values, your wishes, or your family dynamics—will determine who should raise your children based on what the court believes is in their best interest. It can be a stressful process at an already traumatic time, and it may lead to an outcome you would not have chosen. Naming a guardian in advance through estate planning documents gives YOU a voice in one of the most important decisions of your children’s lives—and gives your loved ones clarity and peace of mind if the unthinkable happens.

Alrighty, let’s shift to a sneak peak of next week, which we’re circling back to the “current trends” topic where we talk about things that are going on currently that impact my estate and elder law world – or maybe, things that I have stumbled upon on the news or social media that is relevant to this podcast. Next week is going to be kind of a follow-up episode…so way back in episode 126, I did a “celebrity estate planning” episode on Jimmy Buffett; Well, there are updates to his estate, including his widow contesting things and trying to remove a trustee. So, since there are headlines going on about this, it seems like a good time to do an “update” episode on Jimmy Buffett’s estate. So, that’s what next week will be about, Legal Tea Listeners, so until then, be well and talk soon!

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