Who Will Watch Over Johnny?

As every parent knows, life happens. Things that cannot be predicted happen and all that we can do sometimes is be prepared for whatever life throws our way. As parents, we are responsible for our children and as long as we are on this earth we try to make the best decisions on their behalf. But what happens when we’re not on this earth any more? Can we still make some decisions for them from beyond?

If you and your spouse die without a will, NY State will decide who will take care of your child. A will identifies your choice of guardian as well states how you would like to divide your assets.

So, sit down with your spouse, have a pen and paper handy and begin by asking yourself these questions. Please remember that you may not come up with a guardian the first time through this exercise and that’s OK. This is a big decision that deserves a lot of time and thought.
1. Do you have total confidence in your choice for a guardian?
2. Is the potential guardian physically able to handle the job?
3. Does the potential guardian have the time?
4. Where does the potential guardian live?
5. What is the religion or religious status of the potential guardian
6. What is the relationship your child currently has with the potential guardian?
7. Do you have enough assets to raise your child? If not, can your potential guardian afford to raise your child?

Total Confidence:

It goes without saying that you should trust your guardian completely as they will be voice of your children. I often recommend to my clients that they assign a different person to raise their children from the one who will watch the checkbook. A few clients have stated that they were relieved as they didn’t trust their guardian with financial matters. This is clearly not an ideal situation as you want to be able to trust the potential guardian with financial decisions as well as with the care of your child.

Physical Ability:

Most people start with family members when choosing a guardian for their children. Brothers, sisters, moms and dads are usually at the top of the list. When selecting the grandparents as guardians it is important to factor in the grandparents’ age and health status. Although a good sounding idea, a lot of times it isn’t fair to ask our parents to raise our children. Cindy Chow, of Hewlett, NY knew that her parents would not be interested in raising her twin girls as they have done their part in raising her and her siblings. She knew that they wanted to travel and see the world. On the other hand, Cindy’s in-laws would have been hurt if they were not chosen as they are extremely close to the girls and baby sit often.

Time Management:

The next in line are siblings. When deciding if you chose a sibling as guardian for your children, remember to consider the size of the family that they already have. Laura, one of my clients, wondered if her sister, mother of three could handle her three kids as well. Laura ultimately decided to have her cousin, mother of one, as the guardian based on her location to the grandparents.

Location, Location, Location:

It is important to factor in whether your children will have to change schools or make a major move. Sandy, another of my clients, knew that this would be a stressful time for her three boys and did not want to add the anxiety of moving her children to another state to live with their aunt and uncle. Sandy ultimately decided to have a neighbor and close family friend the boys’ guardian to keep them close to their friends and in the same school district.


If religion is important to you and your family, you’ll want your guardian to have the same beliefs as you. Culture and values are often brought up at this time. It is important to note that no one will be exactly like you and make the exact decisions as you would (not even an identical twin sister). You’re only looking to select someone comparable or similar and eliminate the people that go against or will not support your beliefs.


Your child’s care is the topic at hand and it is very important to think about the relationship your child has with the person you choose as guardian. It is critical that they get along well. Ideally, they should be familiar with each other and know the relevant things about each other.

Financial Status:

As stated above, if you can leave your children a nest egg, the guardian’s financial status isn’t a major concern. However, you do want someone that is trustworthy and financially stable to make the proper financial decisions. If you do not have the assets to support your children, you do need to consider the guardian’s financial situation and whether caring for your children is within their means.

When you decide on a guardian, it is recommended that you discuss it with your children if they are old enough to understand. Emphasize that you and your spouse are not planning on dying, but that life happens and you’d like to be prepared. If your children agree with your decision, the next step is to discuss the decision with the potential guardian. They may say no and decline your offer. They may not want the responsibility and it is better that you know now so that you can make the right choice. Don’t be angry – instead think of the favor they did by letting you know that they weren’t ready.

If the potential guardian agrees, talk to your estate planning attorney and get everything documented in your will. Work with the attorney on how any money should be left and if and when the guardian should have access to it. When the will is signed and executed, relax and live.

Portrait of Odelia Goldberg, Esq.

With over 50 years of combined experience, our probate, estate planning, real estate, elder law and asset protection attorneys provide peace of mind for our clients throughout South Florida.

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