Naming Guardians for Minor Children in Your Will

A guardian is a person who has legal responsibility for a minor child in lieu of the parents. One of the most important tools you can use to care for your children  is a well-drafted Illinois estate plan that includes carefully-selected guardians for your minor children.

Guardians are appointed by the court when parents are deceased, unable to care for their children or have abandoned their children. Naming a guardian in your will is a way of nominating whom YOU believe is the most appropriate guardian.  Some parents have attached letters detailing their thought process in selecting a guardian.  The courts take into consideration the parents’ wishes in appointing a guardian and seek to determine what is the best interest of the child.

It’s important to note that when one parent has custody, by default, a child’s surviving parent will most likely have the opportunity to take custody of the child when the other parent dies, because biological parents rights are superior to others. If your child is estranged from their co-parent, or that co-parent is a danger to their child, be sure to discuss this fact with your attorney when creating your will, as you may need to supply additional evidentiary support on this issue.

A person is qualified to act as a guardian if the court finds that the proposed guardian is capable of providing a suitable environment and being actively engaged in the development of the child.

The court will review whether a proposed guardian:

• Is at least 18 years old;
• Is a resident of the United States;
• Is of sound mind;
• Is not an adjudged disabled person; and
• Has not been convicted of a felony, unless the court finds that the appointment of the person convicted of a felony is in the minor’s best interest. As part of the best interest determination, the court must consider the nature of the offense, the date of the offense and the evidence of the proposed guardian’s rehabilitation.

A conviction of a felony involving harm or threat to a child prohibits one from being named a guardian.

Friends might be the best choice of guardian for your children

While a relative might be a more traditional choice of guardian, the child’s best interests may  be better served by a guardian who is a friend rather than family. The child’s grandparents may be too old, live far away or be too busy pursuing retirement dreams to take on the task of raising young children, and siblings may not be sufficiently stable to raise children. Close friends, especially ones who have been a big part of your life throughout your children’s lives or who have similarly-aged children, might make a better choice as competent and loving parents.

Consider the guardian’s ability to successfully manage finances

When children inherit assets from their deceased parents, the funds are usually devoted to their care. Some parents name separate individuals to care for their children and to oversee their financial needs. A nurturing individual who may be well suited to provide day to day care may lack financial acumen. Parents can name the same person for both roles but the court must approve the appointment of the conservator, or asset manager, just as it must approve the appointment of the guardian. A conservator has to report to the court on a regular basis to provide a detailed accounting of the status of the child’s assets.

Look at the personal values of your chosen guardian

Choose a guardian who will raise your child to value the same principles and values as you would. If they’re a parent, look at the quality of their relationships with their children, and whether their parenting style would comport with yours. If you’re religious, make sure that your guardian either shares your views or would be comfortable bringing your child to religious classes and services.

This post concerns designating a guardian for your minor children in your Illinois estate plan. It is for informational purposes only and is not legal advice and does not create an attorney-client relationship. For experienced, knowledgeable, and effective assistance in creating a comprehensive estate plan in Illinois, contact attorney Jeanine Friedman at 847-648-1739.