Nominating a guardian for your minor children is not an easy task. You have to decide who you know that will be the best person to raise your children in your absence. Most people choose a married family member with a family of his or her own. There is nothing wrong with that. However, many people go about drafting the nomination poorly.
What many people do is to state that they want the family member and his or her spouse to be guardians. They make it sound like a joint guardianship. This can work well if at the time that a guardian needs to be appointed the couple is still together. However, if the couple is no longer together, then the court has to determine what was intended. The court has to decide what the parents would have wanted in a situation where the family member has passed away but the husband or wife is still alive. Would the parents want the husband or wife to still be the guardian? That is a difficult question for courts.
Make sure that you talk to an attorney about how to go about nominating a guardian for your minor children. Tell the attorney what to do in the case that one member of a couple is no longer around. That will make things easier.
Stephen A. Mendel, Estate Planning Attorney
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