Naming a guardian for your minor children is one of the most important — and often overlooked — decisions in estate planning.Â
And as more families balance dual incomes, geographic dispersion, and complex financial lives, the consequences of not making that decision are growing more significant, Harry Margolis, author of “Get Your Ducks in a Row,” said in a recent interview.
At its core, guardianship planning answers a simple but critical question: Who will care for your children if you can’t?
Below is a transcript of that interview, edited for brevity and clarity.
Guardianship planning for minor children
Robert Powell: What happens to the guardianship of minor children if you pass away or become incapacitated? Joining me to discuss this is Harry Margolis, author of “Get Your Ducks in a Row.” Harry, welcome.
Harry Margolis: Always good to talk with you.
Choosing a guardian is never easy
Robert Powell: It’s a pleasure. I remember when my children were minors, my wife and I spent a lot of time thinking about who to name as guardians. It wasn’t easy, especially with triplets. We had to consider practical issues, like whether someone had the space to take them in. It’s a topic many parents struggle with.
Harry Margolis: It is. It’s hard to imagine what would happen to your children if you’re not there. There’s no perfect solution. You choose the best available option and hope it’s never needed. Depending on your situation, the choice may be obvious — close friends, parents, siblings. But you should name someone just in case.
How guardianship works in a will
Harry Margolis: Laws vary by state, but generally you can nominate a guardian in your will. The actual appointment is made by a court. Parents are the natural guardians of their children, but anyone else must be formally appointed.
In most cases, the court will appoint the person you nominate. The presumption is that parents know best. Only if someone objects and presents evidence that your choice is inappropriate would a court consider a different option.
So while you are technically nominating, not appointing, your choice is very likely to be honored.
Incapacity can create more complications
Harry Margolis: If you become incapacitated, things can be more complicated. Many states now allow you to name a standby guardian who can step in if you are unable to care for your children.
However, fewer people take advantage of this. Without a standby designation, someone would need to petition the court to be appointed. That can lead to disagreements among family members.
If your state allows it, naming a standby guardian is a good step. Courts are likely to honor that choice as well.
Temporary vs. permanent arrangements
Harry Margolis: A standby guardian may serve temporarily. If your incapacity is not permanent, that person could step in for a period of time and then step aside if you recover.
Communicate your decision
Robert Powell: It’s probably obvious, but you should tell the person you’re naming as guardian.
Harry Margolis: Absolutely. You should ask them first. It’s a significant responsibility.
Factors to consider when choosing a guardian
Harry Margolis: Often, it comes down to what feels right. One practical issue is location. For example, when my children were young, my brother and sister-in-law might have been the natural choice, but they lived in Switzerland. That would have been very disruptive.
Don’t overlook financial planning
Robert Powell: Another issue is ensuring you have enough life insurance to support your children through adulthood, including education. You don’t want the guardian to bear that financial burden.
Harry Margolis: That’s an important point. This is where a trust can help. You might name a trustee to manage the money separately from the guardian.
That way, the guardian focuses on caregiving, while someone else oversees the finances. It also provides an added layer of protection.
Special needs planning requires more care
Robert Powell: For children with special needs, guardianship may extend beyond age 18.
Harry Margolis: Yes, and that can be more complex. Guardianship may be lifelong. Also, once a child turns 18, even parents must go to court to be appointed guardian if needed.
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