It’s very common that parents with minor children look to their own parents as legal guardians of their children if something were to happen. After all, look how good you turned out!
When I first started practicing in estate planning, I would sit in on my mentor’s client meetings and observe how he educated clients on estate planning topics. He was a master teacher, constantly drawing analogies and using stories to help clients understand estate planning concepts.
On the topic of guardianship, I started to notice how he was consistently giving advice that seemed counter-intuitive to me when counseling clients on selecting legal guardians for their young children.
He would always counsel his clients, “grandparents typically do not make good parents.” While I was a little puzzled by this at the time, over the years I have come to appreciate the wisdom in this counsel.
A New York Times article a few years ago identified the realities of the often-times over-simplified, sentimentalized role of grandparents in our culture
The article quoted Steven Mintz, a family historian at the University of Texas at Austin as saying, “Our culture views the grandparent relationship as positive, but the grounds-eye view is a little more complicated. Sociological surveys suggest a fair amount of ambivalence on both sides.”
"Grandparents typically do not make good parents."
Catherine Giordano, a young grandparent at only age 52, expressed what the article said is a common sentiment among grandparents: “I’m involved, but I’m not the parent. I’m looking forward to getting to be involved and not necessarily doing it all over again.”
And that, I believe, is the key. Most grandparents have no desire to do it all over again. They’ve been there, done that and are ready to move on into the next chapter of their lives.
They’re also tired.
Wendy and I are still raising two teenagers but we are also enjoying our eight grandchildren! The realization has hit us in recent years as we watch our married children that being parents of young children takes a lot of energy – energy we no longer have!
As Wendy and I did, our children and their spouses are naming their siblings as legal guardians for their children, not us.
This makes sense for a number of reasons. Besides having better health and more energy, your close friends or siblings often are in a similar stage of life as you are and may even have children similar in age to your children.
The point of this discussion is not to say that if your parents were the best option, you have that it would be a mistake to name them as legal guardians of your children if something happened. I believe most grandparents would step up, assume that sacred stewardship and do the best they can if they had to.
I have, however, come to agree with my mentor’s counsel and encourage my clients to look to others closer to their stage of life when choosing legal guardians for their children before looking to their parents.
Should You Keep it a Secret?
- Those not selected at all (usually parents and siblings);
- Runners-up (those selected as back-ups to your first choice);
- The legal guardians themselves.
Why the last category? I’ll talk more about this below but as your child grows older and as circumstances in the life of your guardian change, you may feel like it’s no longer a fit and need to update your choice.
Another reason I’ve heard for keeping it a secret from everyone is that if you tell your guardian – or even your child – others in the family are bound to find out one way or the other and then you’re back to hurt feelings.
What to do? I advise my clients that you must at least tell the person you’ve chosen.
Why? For the wellbeing of your child.
We have a saying in our family about secrets: “No secrets – let the sunlight touch it“.
Your guardian will perform better if they have time to absorb the enormity of the responsibility you are placing on them. They will pay closer attention to special challenges you are experiencing with your child and how you handle them.
Most parents also want to express to the guardian verbally, if not in writing, their wishes regarding the disciplinary, religious, educational, and belief system aspects of their child’s upbringing.
I think we can all appreciate that if you tell the person you’ve chosen, there is a high likelihood other candidates will find out. You have to ask yourself; do you want those who didn’t make the cut to find out from you or through the grapevine?
We have a saying in our family about secrets: "No secrets - let the sunlight touch it"
Your guardian will perform better if they have time to absorb the enormity of the responsibility you are placing on them. They will pay closer attention to special challenges you are experiencing with your child and how you handle them.
Most parents also want to express to the guardian verbally, if not in writing, their wishes regarding the disciplinary, religious, educational, and belief system aspects of their child’s upbringing.
I think we can all appreciate that if you tell the person you’ve chosen, there is a high likelihood other candidates will find out. You have to ask yourself; do you want those who didn’t make the cut to find out from you or through the grapevine?
There’s also a legal consideration. While judges almost invariably appoint those you name in your will as your child’s legal guardian, they are not required by law to do so.
How can this be so? What if at the time of your death the person you chose is incarcerated? An addict? Mentally unstable? Transient? A judge can override your will in these situations if it is in the best interests of the child.
I bring this up so you will know that your guardian designations can be challenged in court by other family members. Having tried cases for ten years, my experience is that most legal conflicts can be avoided when there is clear communication between the parties – especially when it is uncomfortable.
If you made it clear to all interested parties during your lifetime who your choice is, while some may have hurt feelings initially, they usually quickly get over it. Your guardian designation is less likely to be challenged in court if there is no surprise when your will is read.
Parenting Magazine has some advice that might help smooth ruffled feathers: “Try pinning the decision on neutral criteria, maybe people’s parenting experience, [location], or the size of their existing families.”
Remember, it’s not about you, your parents or siblings. It’s about your child.
Kent Phelps
Attorney, CEO, and cofounder of Trajan Estate.
