It’s a common dilemma. One married mom wanted to appoint her husband’s brother because his parenting style was most similar to theirs, while her husband wanted to appoint her sister because her kids are closer in age. Another couple couldn’t decide between appointing a cousin who lives nearby or an aunt who lives in a different state.
For many, the biggest obstacle to appointing a guardian is the fact that no one is going to parent your child then same way that you would. For that reason, there may never be a perfect, or a clear, choice.
What Happens If You Don’t Have a Will?
Consider the circumstance where, paralyzed by an inability to make a decision, you never name a guardian. Not only that, but you never execute a will. First and foremost, your assets have to pass through probate — a lengthy and antiquated process that will leave kids in limbo for months. Secondly, no one will have any guidance about your preferred guardians — least of whom, the person who will decide who to appoint: The Judge.
In the absence of a will that appoints a guardian, a Family Court Judge will determine what person will best suit your children’s interests.
That judge won’t know your child personally, and won’t know the guardian either. She will have to rely on the assertions by potential guardians and their lawyers. She may appoint a Guardian Ad Litem or a Lawyer for the Child, but that process too will be time-consuming and costly.
What Happens If You Choose the Wrong Guardian?
There is little to lose if you name someone who is not The Perfect Guardian. It’s likely that you are the only perfect guardian for your children. If you’re not around, and there are a handful of other, less-than-perfect, but perfectly acceptable, options, then you have the golden problem of choosing the first one you would call — if you could. You can, and should, also name alternative guardians in the event that your first-named guardian is unable or unwilling to serve as your child’s guardian.
Take, for example, the couple who can’t decide between naming someone who is local and someone who is out of state. This tends to be a concern as children get older because parents would prefer that they stay in a familiar setting and might lean towards the local guardian. But when the child is younger, their world is smaller and any change of living situations is a significant change — so they would opt for the out-of-state aunt who is more closely aligned with their parenting style.
What would the result be if you named the out-of-state aunt now, for the time being? You would have the most perfect guardian named for your child’s current age. As the years wear on, you can change your Will to fit your child’s needs as they get older.
The downside? The time and expense of getting a new Will.
The upside? Not having a judge appoint a guardian based on the judge’s determination of your child’s best interests.
In the context of appointing a guardian, you have little to lose by naming a few almost-perfect guardians instead of The Perfect Guardian (if he or she even exists).
In this case, the lesser of two evils is to make that imperfect choice — as long as you make one.