Gabriel Katzner - May 23, 2023 - Guardianship
Couple giving Estate Lawyer last will and testament with a non U.S. Guardian option for their children

Choosing a guardian for your minor children is stressful for any parent. Not being around to usher your child safely into adulthood is an unthinkable option. Naming a guardian is one of the most important decisions you will make as a parent. What should you do if your first choice is not a U.S. citizen?

While no one wants to consider naming a guardian for their children, it is essential. Suppose you or your child’s other legal parent do not name a guardian in your Last Will and Testament or another document. In that case, the court will need to do so on your behalf.

In our globalized and highly mobile world, it is entirely possible that the person you would choose to be a guardian is not a U. S. citizen. This raises the question, would a non-U.S. citizen legally qualify for guardianship? While your child’s guardian does not have to be a U.S. citizen or a permanent resident, it is ultimately up to the court to approve a guardian.

The court is ultimately responsible for deciding whether your choice of guardian is qualified to serve in that role. You can put forth candidates, but ultimately the court decides. A family member could challenge your choice and attempt to name an alternative. If no one is willing or available to serve as your child’s guardian, then they might end up in the foster care system.

Among other factors, the court will consider the individual’s residency or citizenship status when making this decision. For example, suppose the person you name as guardian is not legally permitted to live in the U.S. In that case, they may not be automatically dismissed as a potential guardian if they are otherwise a good candidate. However, if they are also named as the child’s trustee, there may be tax complications.


What is a Guardian?


As a parent, you are legally obligated to support your child until they are an adult (age 18). You must ensure they receive medical care, housing, clothing, food, and education. If you should die unexpectedly, then if the responsibility is not already shared with the child’s legal parent, it will now fall on them.

Suppose you and your child’s other parent are in a fatal accident, and both pass away simultaneously. While the odds of this occurring are small, it can happen. The person who would step into your role now would be your child’s legal guardian. Many people choose a grandparent, sibling, or close friend to fill this very important role for your child. By choosing a guardian, you have time to consider how you would want your child to be raised and who you would choose to care for them.

It is also important to check with your potential choice for a guardian to verify they are able and willing to step in and raise your child. Name a guardian, or ideally, a list of guardians in your estate plan. This way, everyone knows your intentions, and you have a backup plan in case your first choice for a guardian is unable or unwilling to raise your child.

While most people would agree that they want to ensure that their wishes are carried out when choosing a guardian,  6 in 10 U.S. adults do not have a basic will, let alone a full estate plan.


What does the court consider when naming a guardian?


The court first assesses whether your guardian candidate meets guardianship requirements under state law. Relevant factors may include the potential guardians:

  1. Age: are they at least 18 years old?
  2. Criminal record: do they have a felony conviction involving harm or threat to a child?
  3. Lifestyle choices: Are they U.S. residents?
  4. Physical and mental capabilities: Are they of sound mind?
  5. Financial situation: Will being a guardian pose a financial hardship?

If the person does not have a lawful U.S. status or lives outside the country, it could raise some questions for the court, such as:

  1. Will the child be taken outside of the country to live?
  2. Will they be living in a safe and suitable location?
  3. What will the child’s legal status be in that country?
  4. How will their legal status in that country impact them?
  5. Does the child have any ties to that country?
  6. Does the child speak the same language as the guardian?
  7. Has the child visited the guardian’s country before?
  8. Can non-U.S. citizens come to the U.S. and remain here long enough to complete the guardianship process?
  9. Are there any legal issues that prevent the proposed guardian from obtaining a visa for this purpose?
  10. Is there a chance the guardian could move to the U.S. and gain a lawful status to live here and raise the child?

The court will consider all these factors and the situation’s context. For example, how comfortable would the child be moving to another country to live with their guardian? Answer these questions in advance for the court as part of your estate plan. By presenting a compelling argument for your choice of guardian, it is more likely your wishes will be honored.


What is the difference between a legal guardian and a guardian of the estate?


The person you choose to raise your child to adulthood is their guardian. The person in charge of administering the finances you have set aside for this purpose is a guardian of the estate.


In some states, these are different people. Sometimes, the same person serves as both the legal guardian and the guardian of the estate.


If your proposed guardian is not a U.S. citizen and you have established a trust for your child’s benefit, separating these roles may be a good idea. Having a foreign trustee could cause the trust to be designated as a foreign trust under U.S. law. This designation could trigger some problematic tax consequences. Foreign trusts have potentially higher taxes and different reporting requirements.


Make an informed guardianship decision


Choosing a guardian is one of the most important decisions you will make as a parent. Before finalizing your decision, talk to your estate attorney. They can help you navigate the pros and cons of each potential choice and present some options and issues you may not have considered. They will also help you develop a list of alternatives for your non-U.S. citizen choice in case your first choice does not work out.

Are you ready to make this important decision and review your estate plan? If so, schedule a call with us at 855.631.3457 to learn more about how to protect those most important to you.



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