What does it mean to be someone's legal guardian?
January 4, 2012 11:16 AM   Subscribe

What questions should my partner and I ask my brother and sister-in-law before we agree to be named in their wills as the legal guardians of their young son, should anything happen to them?

My brother and my sister-in-law have asked my partner and I if we would agree to be named in their wills as their son's legal guardians, should something happen to the both of them. They aren't pressuring us for an answer, and are giving us time to think about it.

I understand legal guardianship conceptually - we would agree to care for, love and raise our nephew as if he were our own son. However, I'm not at all familiar with any logistics or nitty-gritty, and I'm looking for ideas on what questions we should ask my brother and sister-in-law before we say yes, so that I can get a better idea of exactly what we'd be signing up for (hopefully to never be invoked, of course). I know they both have life insurance that would provide for their son, but I don't know anything about how that gets administered.

My inclination is of course to say yes, and we are both honoured to have been asked. On the flip side, we are also surprised to be asked, because I have another brother who is married with a small child, and my sister-in-law also has a sister with a small child. My partner and I have no children or parenting experience, so on the surface, we seem like the least qualified family members. We do plan to have children in the future, but not for a couple of years.

Some perhaps relevant details:
-we all live in Canada, in the same area; the rest of my immediate family also lives in town
-my brother and his wife are both in their 30s; their son is 10 months old and healthy
-I am 28 and my partner is 31; we are engaged and planning to get married next year
-I have a full-time and stable job with decent pay and good benefits; my fiancé is in school to be a teacher
-I have no debt; my fiancé has some student loan debt, but nothing too onerous
-we rent a 1 bedroom place

Hit me with your best advice. I have a very good relationship with my brother and sister-in-law; I think they would be receptive to frank and honest questions, and happy that we are treating the issue seriously.
posted by anonymous to Law & Government (8 answers total) 3 users marked this as a favorite
are you to be THE guardian, or one of several possible options ?

(This may be nit-picky.. Our setup runs down a list of people to be the guardians of our kids, and each entrant is fully allowed to say "no" if/when the time ever comes. We were clear about that to each entrant on our list, since times/situations/etc change.)
posted by k5.user at 11:23 AM on January 4, 2012

Ask them this: "Why did you ask us?"

When my wife and I decided to ask some friends of ours to be the (backup) legal guardian for our son we looked to people whose views on life and religion were aligned with our own, not as much towards parenting experience. We have friends and family members with children who might have been more experienced but who might have raised our son in a way we wouldn't want him being raised.
posted by bondcliff at 11:26 AM on January 4, 2012

You need to be clear on the financial arrangements for this child if both parents die. In our case, the child in question is the beneficiary of a life insurance policy that would pay into a trust to be use for the child's college education (and would cover it - it is a healthy policy.) This is exclusive of the value of the parents' estate. I can't control their finances, the value of their house or how much debt they incur against their assets, but I can make sure that if the worst happens, the child in question isn't also deprived of an education I (not being her parent) have not been saving for for the past 14 years.
posted by DarlingBri at 11:32 AM on January 4, 2012 [3 favorites]

My brother and sister-in-law (we're all in our early-to-mid 30s) asked me and my partner the same question soon after my nephew was born. We said yes immediately. You sound like you're in a similar position (stable job, good salary, benefits, no kids, living in an apartment, etc). The only question I had for them was "Why us?" and their answer was very similar to what bondcliff mentions above. Although we don't have parenting experience, our values and interests are much more in line with theirs than my sis-in-law's siblings (one of whom already has a child and both of whom own their own homes) and if the worst ever happened, they would be more comfortable with their little guy being raised by us.
posted by futureisunwritten at 11:33 AM on January 4, 2012 [1 favorite]

I know they both have life insurance that would provide for their son, but I don't know anything about how that gets administered.

INAL, but I believe guardianship of their son (the person) and guardianship of his inherited property (assuming he's a minor at the time) have to be stipulated separately. May or may not be the same person. But if you're financially competent and stable, it may have been one of the reasons they've asked you to be both.

If you're to be the administrator of his property, ask some questions about how the parents would expect the insurance policy payout or inheritance to be used (education, day-to-day expenses, travel/camp, etc.). There can be all kinds of variables. Some wills stipulate that children receive control of all inherited moneys at the age of majority, some dole it out in smaller lumps over a period of years, with the guardian still administering the remainder in trust.
posted by Kabanos at 11:45 AM on January 4, 2012

As other folks have noted, I would ask a few more questions about their estate planning with regard to the child. Ask if the life insurance proceeds would be paid into a trust for the child's benefit and, if so, who is the trustee. Most likely it'd be you. Administering funds as a trustee is considerably simpler and less burdensome than administering funds as a legal guardian of an estate, or at least that's the case in most U.S. states.
posted by chicxulub at 12:39 PM on January 4, 2012

I'm imagining a messy scenario, where their will lists both of you as guardians, you and your partner split up or separate, but your brother & sister-in-law neglect to update their will accordingly.
posted by kickingtheground at 3:12 PM on January 4, 2012

We chose our gaurdians not based on their parenting experience but based on the fact that the people we chose valued the same things we do. For us this included the importance of education and family, and similar morals. As others have said, ask why they chose you; maybe also ask what types of things are important to them - what if you move away from the immediate family? What if you have for of your own kids?

We had the issue kickingtheground mentioned. We chose guardians when we had our estate paperwork done, which was prior to us having kids. Our guardians divorced. We didn't do anything about the paperwork until we had kids, and I was left imagining a fight between them, particularly over the money (as opposed to the kid), even though a trust was involved. obviously that's something they should be worried about.
posted by dpx.mfx at 6:45 PM on January 4, 2012

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