Choosing a Guardian and Conservator for Your Minor Children

For parents of minor children, there is perhaps no more important decision in estate planning than deciding who will care for your children if both you and your spouse were to die or become incapacitated. In making your selections, there is an important distinction to consider: you can (and often should) differentiate between naming someone who will care for your children and naming someone who will be responsible for your children’s money. In Michigan, the person who will care for your children is called a Guardian and the person who will care for your children’s money is called a Conservator[1].

Why You Might Want to Name Separate Guardians and Conservators

There are important reasons why you may want to segregate these duties among separate individuals. The following are some of the most common reasons.

  • Your children benefit from well qualified individuals, as well as checks and balances. In many cases, there may be a nurturing and loving guardian who may not be the best decision maker when it comes to money. In others, there may be a brilliant financial adviser among those you trust, but the individual may be too busy to provide a great level of care for your children. Naming one or the other for both duties despite lacking the ability to perform well in both areas is counterproductive for your children. Similarly, failing to name a loving caregiver because of inadequate financial management skills, or failing to name a brilliant money manager because of lack of quality time to give your children, deprives your children from the unique qualities each has to offer. Naming the first as Guardian and the latter as Conservator gives your children the best of both worlds and allows each individual to focus on his or her respective duties. Segregation of these duties also offers a sort of “checks and balances” system between Guardian and Conservator for your children.
  • You can ensure your children will continue to be involved in both sides of the family. Additionally, parents may be concerned that their children might not see one side of their family much in the event of both parents’ deaths. They can alleviate this concern by naming a Guardian from one side of the family and a Conservator from the other side, thereby facilitating continued involvement in the children’s lives from both sides of the family.
  • You can spread the financial management duties among multiple individuals while keeping your children with one caregiver. Finally, if you have multiple children, you might consider naming a separate Conservator for each child if the financial management will be a large burden, though you will likely want to name the same Guardian for all children to ensure that they can continue to live with their siblings and will not be split up. Notably, if you elect to plan with a trust, the role of Trustee can make it unnecessary to have a Conservator, and can allow for the funds you leave behind for your children to be treated as a “common pot” of money until the youngest reaches a certain age or certain life milestone (such as graduating college). This style of money management more closely resembles how money would be handled if the parents continued to live, and is often the preferred method.

Considerations in Selecting Your Intended Guardians and Conservators

When choosing your Guardian and Conservator, know that you are unlikely to find someone who would be “perfect.” After all, there is no one who is just like you, and you are planning for a situation that is certainly not ideal. Your task in choosing a Guardian and Conservator is making the best of that situation for your children. That said, while the circumstances of every family are unique, the following considerations provide a good place to start your decision making process.

  • Basic characteristics. You should generally look for someone who shares your values, goals, and parenting style, someone with good character, someone who is financially stable, and someone with relatively good health and a life expectancy that is longer than the time it will take your children to become adults. That said, in light of these characteristics, be sure to also let your attorney know if there is anyone who might be interested in filling the role but whom you absolutely would not choose. Your attorney can help to ensure your wishes are honored in a way that doesn’t offend the seeker of the role.
  • Considerations in choosing your own parents. Subject to life expectancy and health, many would choose their own parents to become Guardian and Conservator. But in so doing, carefully think about what that would mean for them – would you want your parents to have to “start over” in raising children again when they may have just retired, for example? Others name those more close in age to themselves, such as siblings, cousins, or close friends. If your child has a godparent, he or she is often someone from one of these categories.
  • Discussion with (and agreement from) your intended choices. In all cases, be sure to have a discussion with your intended choices before naming them. This will give you a chance to address any concerns or apprehensions that your chosen persons may have. You can name an alternate in his or her place, if necessary. It will also provide you with peace of mind in knowing that there won’t be any surprises later.
  • Only you and your spouse can decide what is right for your children. You may want to keep this discussion private among your choices and their successors. Family members can often make assumptions about who a Guardian or Conservator should be, and this is further complicated when two families are involved. Unless your intended choice opposes your plan, the decision belongs to you as parents. If your decision is well reasoned and feels right, don’t allow yourself to be influenced by the opinions of others.

Action Steps

Once you have chosen a Guardian and Conservator, make your choice legally binding by contacting your attorney to draft or update your will, and draft or update your wishes in a separate writing. This separate writing is a one or two page document which restates your intention as to Guardian and Conservator from your will.  It is meant to be used in the case of incapacity, and in the case that all of your assets are transferred outside of probate. This way, your privacy is preserved and only the separate writing is filed instead of the complete will stating your instructions for distribution of your assets. These documents can also specify anyone who is not to serve as Guardian or Conservator, without having to state a reason.

What questions do you have about naming a Guardian and Conservator for minor children? Feel free to ask Mammel Law at 248-644-6326.

[1] In Florida, the person who will care for your children is called Guardian of the Person and the person will care for your children’s money is called Guardian of the Property. For the purposes of this article, the Michigan terms of Guardian and Conservator will be used.

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