Gregory S. DuPont
Watching Over Others
Your younger sister has just given birth to her first child and has asked you to serve as a guardian should something happen to her and her husband. While offering to help watch over loved ones may be a natural impulse, guardianship is an obligation that should not be taken lightly. When you agree to be a guardian for minors, you are essentially committing to providing for that child (usually until age 21) as if he or she were your own.
Some Sensitive Issues
For those without children of their own, suddenly having children to raise may require an unexpected change in lifestyle. For those who already have children, issues of integrating other children into the family will have to be addressed. For example, it is difficult to know ahead of time how well your children will adjust to having siblings who are not their biological brothers and sisters. Moreover, will other family members be second-guessing decisions you make as guardian, particularly if you are a close friend and not a blood relation?
Furthermore, assuming guardianship of someone else’s children is a major financial responsibility. Too often, for the sake of politeness, important financial issues are not addressed by the respective parties. Some of those issues to consider are: Would you be able (and willing) to assume full financial responsibility for raising someone else’s child(ren), or would you expect some financial provision to be made in the parents’ wills such as a guardianship trust? Should you, as the designated guardian, be made the beneficiary of life insurance policies in the event that both parents die? Is there sufficient life insurance to pay for the cost of raising the child(ren) including higher education? If assets are to be placed in trust for the benefit of the child(ren), how will the trust be administered? Will you, as a guardian, have any role in controlling trust assets? In short, how will finances be handled?
Finalizing a Commitment
Even if you have agreed in principle to become a guardian for the child(ren) of a relative or friend, your acquiescence is not binding because a court must first formally appoint you as guardian. As a general rule under guardianship law, a court will not force anyone to serve as a guardian against their will, even if that person previously agreed and was named guardian in the parents’ wills.
Since you cannot know in advance when you might be called upon to assume guardianship, a reasonable response to being asked might be that you would be honored to do so if, at the time, your circumstances allow it. This type of response enables you to express your desire to help but to delay your commitment until such time when you can better assess the full extent of the responsibility being asked of you.
However, if your intent is to serve as guardian if at all possible, it is never too early to open discussions on the important issues, some of which are raised above. Although you may feel uncomfortable at first, all parties will be well served by a frank airing of their expectations. The parents will have peace of mind that a caring individual will raise their children in a loving, supportive environment; and you will better understand the financial nature of the responsibility you are being asked to assume. And, most importantly, the children will benefit from having been cared for by willing guardians.