Choosing Guardians for Children
Although one of the perils of running an estate blog over the past month has been (with apologies to CNN) the risk of over-reporting on the estate of Michael Jackson, the media frenzy has nonetheless served to shine a light on certain aspects of estate planning that otherwise go unnoticed.
A clause appointing a guardian for one's child(ren) is not always one that younger testators choose to put in their wills. This may in part be due to the statistical unlikelihood of both parents dying before a child reaches the age of eighteen. In such a tragic eventuality, and as Natalia Angelini noted in her recent blog on the subject, the ultimate decision on guardianship is in the court's discretion.
A recent article posted online by the Canadian Press comments on the difficulty that couples may encounter in trying to agree on a guardian for their child(ren). Some will want a friend; others will insist on a family member. Complicating any decision may be such considerations as the likelihood of the proposed guardian relocating to a foreign jurisdiction or remarrying someone who, in hindsight, may not prove to be a good parent to the children.
It is always a good idea to plan for any statistical anomaly. The Courts will typically respect the choice of the testator and assign great weight to his or her wishes. The alternative of leaving the decision completely unfettered by such wishes is not one that any parent of a young child would want to contemplate.
David M. Smith
