Estate Planning Resources

How to Avoid 5 Mistakes When Choosing a Guardian for Your Minor Children

Choose a Legal Guardian As Soon As Possiblelittle girl blowing bubbles

Do you have a Last Will & Testament written? What about your wishes for your children? It’s not something you think about every day, but it should be. Your estate is one thing, but your children’s well-being should be top priority. Your will should include the names of the legal guardians to take care of your minor children should you become disabled, pass away, or otherwise be unable to provide for your children. Plan your estate with Angermeier and Rogers.

Before you name a guardian, be careful to not make these 5 common mistakes:

1. Not thinking long-term

What if one of the guardians passes away before you update your will, and the other one isn’t able to take on the role themselves? Creating a backup plan to answer the ‘what-ifs’ is a smart move, and gives you complete control of your children’s well-being even if you’re incapable or deceased.  

2. Not providing detailed instructions on how your children should be raised

Do you have a certain school you want your children to attend? What about their nutrition or religion? As a parent, your wishes should be honored. While you cannot guarantee your child learns ballet or plays soccer, you can at least make your wishes of how and where they are raised known.

3. Naming only 1 guardian

Selecting 3 or 4 different guardians secures your children’s future, especially if your first, or even second choice doesn’t work out for some reason. Carefully selecting several backup guardians guarantees that your children will be under safe care, no matter what happens.

4. Not specifying who you don’t want raising your children

You have your opinions on who you don’t want as your minor’s guardian. Share them in writing! Documenting who you want and don’t want will settle arguments, even if your extended family members disagree with your choice of guardian. If you are divorced and have primary custody of children from that union, you will definitely want to make it clear how much influence your former spouse can have.

5. Choosing a specific person just to appease them

Don’t select a specific person as a guardian just to appease them. Whether they are friend or family, you should not be pressured into naming a guardian if you do not have 100% certainty they will follow your wishes. It is ultimately YOUR DECISION as a parent to choose who raises your children if you’re unable to do so.

5 Factors to Consider When Naming a Guardian for Your Minor Children

In the unthinkable situation you are left unable to care for your own children due to injury or death, you need someone you trust to ensure they grow up loved. If you do not have a legal guardian, your children could wind up in the foster system or child services where siblings might be separated. The earlier you name a guardian who knows your wishes, the less difficulties there will be in the transition.

Naming a guardian for your children is one of the most important decisions you’ll ever make in your life. Here are 5 factors to consider when naming a legal guardian for custody of your minor children:

1. Parenting Skills

Your best friend or close relative may always be up for an afternoon of babysitting, but are they ready to raise kids 24/7? You want a guardian who is good with kids and is able to take care of them like a parent. Do they have kids of their own? It might be beneficial for the named guardian to already be a parent, so they know how to love and raise children.  

2. Location & Living Situation

If something should happen to you, your children would move into the guardian’s home. It’s a rare case where the guardian would move into your house instead. Does the potential guardian live in a dangerous neighborhood? Is it an ideal living situation? Are there good school districts nearby? These are important questions to consider when thinking about your children’s future and well-being. There’s a good chance your kids would continue growing up in that particular environment.

3. Religious & Moral Beliefs

If you have certain religious beliefs and morals, choosing a guardian who lives by similar standards is essential. You want your children to be raised under the same principles, and while finding a guardian who aligns 100% with your beliefs might be difficult, settling for someone close to yours is far better than no morals at all. It is worth noting that godparents are not recognized as legal guardians; however, you can certainly name your child’s godparents as their legal guardians.

4. Stable Job & Financial Situation

The potential guardian’s job situation and financial stability is a very important factor to consider, as adding children into the mix will raise their living costs exponentially. However, a financially well-off guardian who doesn’t really like children may not be appropriate. Consider setting up a trust for your children so their guardian may raise them with financial stability. YOU have to determine the better guardian for child custody.

5. Age & Stage of Life

When searching for guardian candidates, their age and where they are in life is another crucial factor. A young candidate might be too focused on their career and starting a family of their own to care for your children; however, an older candidate might not be ready to parent again. Been there, done that. There may be pros and cons to choosing one or the other, but selecting a guardian for your kids is ultimately your decision

What Happens if You Don’t Determine a Guardian Ahead of Time?

Family Walking TogetherNo parent enjoys the nature of the topic, but what will happen to your children if you don’t name a guardian? It’s an uncomfortable reality and definitely worth establishing early on.

If you are not able to care for your children and haven’t appointed a rightful guardian, the courts will step in and a judge will make the final decisions of your children’s future.

  • Judges appoint who they think is most appropriate
  • If you are divorced, the court may appoint your former spouse as a guardian to shared children
  • Close family members aren’t guaranteed to be named guardian

What Are the Problems?

Judges try to work in the best interest of your kids, but there will always be problems in the aftermath if you do not plan ahead.

  • Appointed family member might not be who you truly prefer raising your children
  • Blood relatives may receive primary custody over friends or distant relatives you might want instead
  • After guardian is chosen, extended family might disagree over choice & start a legal battle
  • Your child could be placed in the foster system while waiting for a court decision

Legal Guardianship & Child Custody in Wisconsin: What Are the Differences?

Legal guardianship and child custody are similar in concept, but differ in several different ways. Although estate planning includes determining your child’s legal guardian, knowing the difference from child custody is important and helps you determine what is best for your family.

The major differences between both legal actions include:

Legal Guardianship

Child Custody

Exercised by a person OR organization determined by the court to care for a minor

Granted only to PARENTS of the child

Used if parents are unable to take proper care of child (e.g. prison, abandonment, seriously ill, etc.)

Used to determine physical placement of child.

In Wisconsin, child custody usually grants visitation rights to the non-custodial parent

Two types: temporary & permanent

Temporary lasts up to 60+ days, while permanent ends when the minor turns 18

Two types: legal & physical

Legal involves making decisions on healthcare, religion, education, etc., and

physical includes day-to-day care

Responsibilities include supplying food, clothing, shelter, healthcare, etc.

Responsibilities include having the right to make big decisions for the child (e.g. religion, non-urgent medical care, education, etc.)

Can be terminated at any time by the court, depending on the best interest of the child, or if the child turns 18

Is terminated when minor turns 18 (19 if the child is still in high school)

Who Takes Care of My Kids if I'm Divorced & Pass Away?

In the unfortunate event of your passing and you were divorced from your spouse at the time, who takes care of your children? Knowing your children are properly taken care of after your passing is so important and should be planned ahead of time.

Naturally, the state of Wisconsin dictates a surviving biological parent has first parental rights to the minor, even if the deceased’s will has appointed someone else. This means a non-custodial parent could receive custody ahead of your current, surviving spouse. However, there are a few exceptions:

Out of the Picture ParentParent History of Child Abuse, Neglect, or Abandonment

The surviving spouse’s first parental rights can be taken away if they have been charged with child abuse, neglect, or any other harmful behavior. In this scenario, the deceased spouse’s legal will overrules the surviving spouse’s rights and the child is turned over to the appointed legal guardian.

If the surviving parent is not granted custody and there is no legal guardian named, the courts will try to arrange for children to stay with relatives. This process can take time. By naming a legal guardian in your will, you can ensure your wishes are known and your child will be raised by the people you want and trust.

Superior Guidance from Milwaukee Estate Attorneys

Angermeier & Rogers are here to lead you through the entire guardianship process and answer any questions you may have. Drafting a Last Will & Testament and naming a legal guardian for your minor children can get complicated. Trust our knowledge and professional experience in family estate planning, as well as Medicaid planning, retirement asset planning, and trust administration.

Contact Wisconsin family will & trust attorneys at Angermeier & Rogers today!