One of the most important decisions you may ever make as a parent could be selecting a guardian in your Will to raise your children. First, a little background about naming a guardian for your minor children. In Washington, the only method where you can be certain your guardianship wishes are honored is through your Will. Stating orally or in a separate writing who you want to raise your children may give a court some guidance, but is not required to be honored. If, however, your Will says who will raise your children when you are gone, a court is required to honor that designation. There are only limited situations where your selection would not be honored such as if the person chosen is deceased or incapacitated. Such a selection will certainly minimize the risk of a custody battle between competing individuals.
So who is a good choice for this role? That is different for every family. Many of my clients choose a sibling; some choose a parent. Here are some things to keep in mind in making the selection: if I choose my parents, will they have the physical ability to care for and raise a young child? If you choose a sibling or a friend, does that person have similar values and beliefs regarding child rearing? This is probably the most important factor. For instance, if you are deeply religious, leaving your kids to your brother who has forsaken all religion may not accomplish your goals.
A question I am almost always asked is – “Can I name my brother and his wife as co-guardians?” The answer, of course, is yes. But you should consider the ramifications of such a choice. If your brother dies while raising your child his wife, to whom you have no relation, is now raising your child. Another issue arises from the unfortunate possibility your brother and his wife may divorce. If you’ve named co-guardians, the next question is who will continue to raise your child? Of course, your attorney can easily write language in your Will that can solve these thorny little issues.
One last thing to keep in mind is the potential for the guardian to move out of the geographic area where grandparents may live. If the guardian is relocated out of state and away from a grandparent, you may want to consider language that terminates the guardianship and provide for the alternate guardian to assume that duty (assuming the alternate lives near the grandparent).
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