A necessary, but not pleasant, aspect of estate planning is deciding what will happen to your child if both you and the child’s other legal parent were to die unexpectedly. While the odds of this happening may be low, the consequences of not naming a legal guardian in your will or a separate document can be significant. If the child’s parents have not chosen someone to care for the child, a court would have to choose somebody, without your input.
In today’s world, it is not uncommon to have close friends and family members who live in a different country. While some of these individuals may be a good choice as a guardian for your minor child, questions arise as to whether a non-US citizen may legally qualify for guardianship. The short answer is that your child’s guardian does not necessarily have to be a US citizen or a permanent resident. However, a court must ultimately approve the guardian.
When deciding whether to approve the individual you nominate for guardianship, the court looks at several factors, including the individual’s residency or citizenship status. A person who is not legally permitted to live in the United States may not be automatically dismissed by the court if they are otherwise a strong guardian candidate, but if that person is also named as your child’s trustee, there could be tax complications.
How Guardianship Works
As a parent, you are legally responsible for supporting your child while they are under the age of majority, until they reach the age of eighteen. This means you must ensure that they receive medical care, education, food, housing, and clothing. If you were to unexpectedly die or become incapacitated, somebody must step in and fulfill your parental duties.
Normally, this would be your child’s other legal parent. But maybe the other parent is not able to step up because they are deceased or unable to care for themselves. There is also the possibility—no matter how remote—that you and your child’s other legal parent will both die or suffer disability at the same time or within a short period of time. What happens to your child then? Who will provide the care that you are no longer able to provide?
The adult who steps into your shoes in this situation is known as your child’s guardian. A grandparent, sibling, or close friend might be a good choice to fulfill this role. Most importantly, it should be somebody you trust to raise your child the way you want them to be raised and who is willing and able to do the job.
Parents should name a guardian—or ideally, a list of several potential guardians in case your first choice does not work out—in their estate plan. Surprisingly, the majority of Americans do not have a basic will, let alone a detailed estate plan. Without written instructions about who should care for your child in your place, the state must decide. The appropriate probate court could choose a guardian for your child. If nobody from your family is willing or available, your child might even end up in the foster care system.
It is important to note that, even if you have a will and name a guardian, it is still ultimately up to the court to determine if that person is qualified to serve in that role. The guardian named in your will is just a candidate. A family member, or anyone, could challenge your nomination in court and attempt to install an alternative. Or the court may determine on its own that a guardian is unqualified.
Non-US Citizens Not Necessarily Disqualified from Guardianship
When evaluating a guardian candidate, the court assesses whether they meet guardianship qualifications under state law. These qualifications typically include a person’s age, criminal record, lifestyle, physical and mental capabilities, and financial situation, but the qualifications can vary by state.
The court will consider the best interests of the child when appointing a guardian. Nominating somebody who does not have a lawful US status, or who lives outside of the country, could raise the following questions with the court:
- Does the appointment of the guardian mean taking the child outside of the country to live?
- If so, is that country a safe and suitable location for the child?
- What will the legal status of the child be in the new country and how will that impact them?
- Does the child have ties with the proposed country? Do they speak the language? Have they visited before?
- Can the non-US citizen guardian travel to the United States and remain in this country for the guardianship legal process? Are there any legal issues that prevent them from obtaining a visa for this purpose?
- Could the guardian move permanently to the United States and gain lawful status to remain here and raise the child?
Context is everything in these cases. For example, if you were born and raised in the United States and most of the child’s family lives here—but you nominate a guardian that lives outside of the country—the court might decide that it would be in the best interest of the child to remain stateside. If, on the other hand, you were born and raised outside the United States and all of your family lives outside the United States, a guardian from your home country could make sense.
If you plan on choosing a non-US resident or noncitizen for your child’s guardian, you should provide detailed reasons for doing so in your will or separate nomination of guardian document. At first glance, your choice might not make sense to a court. But any compelling arguments—like strong personal ties and a desire for your child to grow up with certain values—could help make your case.
Legal Guardian versus Guardian of the Estate
The person in charge of raising your child is known as a guardian of the person in Michigan and various other states. The person in charge of administering the finances you have set aside for your child is known as a conservator in Michigan and various other states.
Sometimes, the same person serves as both a guardian and a conservator. The role can also be divided. A legal guardian may be a great caregiver but bad with finances. In some cases, it would make sense to take a team approach to childcare, with someone else appointed to handle the child’s financial matters.
Another situation in which you might be hesitant to unify the role of legal guardian and the person managing the child’s financial matters is if the individual is not a US citizen and a trust has been set up for your child’s benefit. Having a foreign trustee could cause the trust to be classified as a foreign trust under US tax law. Being classified as a foreign trust triggers some problematic tax consequences. Higher taxes might be a consequence, resulting in less money for your child. In addition, foreign trusts have additional reporting requirements.
Making an Informed Guardianship Decision
As a parent, appointing a guardian is among the most important decisions you will ever make. Before making that decision, you should talk with an experienced estate planning attorney who can help you understand options and issues that may not have occurred to you.
If you decide to choose a non-US citizen as your child’s guardian, our office can advise you about factors to consider and help you identify at least one US-based alternate in case your first choice does not work out. We recommend reviewing your guardianship wishes, and your estate plan in general, every few years, especially after a major family event.
We would be happy to help you in this important aspect of your planning. Please contact us to schedule an appointment.