The selection of guardians in an estate plan can be a complicated question for any couple, but it is certainly more complicated when naming a non-US citizen as guardian of a minor. The decision to name a non-US citizen as a guardian should only be made with the counsel and advice of an experienced DC guardianship attorney. In general, the court does follow the best interests of the minor standard, so nomination of any guardian, regardless of their residency or their citizenship, is subject to the courts’ approval based on what is in the best interests of the child. A non-US citizen’s ability to return to the US and the length of time that they can stay in the United States to petition the court to be appointed guardian can be problematic in this process. Other issues to address for non-US citizens is whether the child can move to the country where the non-US citizen is residing and whether the parents want the child to be raised in that country. There may be income tax consequences that the beneficiary of the trust or trustees of the trust will have to establish for the minor child to move out of the country.
Steps in Naming a Non-US Citizen as Guardian
The selection of a guardian for a minor child is one of the most important decisions that a couple or individual can make and it is often one of the more difficult questions that an attorney addresses in estate planning meetings. Prior to considering whether to name someone as the guardian, a client may wish to review whether that person will be able to travel to the United States to petition to become guardian, and whether the parent would be comfortable with the child moving or being raised in the potential guardian’s country or citizenship or residency. A parent may wish to ensure that the individual named is permitted to return, can stay for some time to help transition the minor child, and would not otherwise be prevented from serving as guardian, regardless of their citizenship or residency.
Potential Issues and Solutions
There are a number of issues that can arise, including the availability of the non-US citizen to travel to and remain in the United States throughout the legal process of gaining guardianship. There is also some concern with a minor traveling or residing in another country. Finally, there is a tax-related concern; if the minor moves to another country or the guardian is also named as trustee, the action may result in income tax consequences.
A DC attorney can counsel a couple or an individual on the process for naming a non-US citizen as guardian and the potential pitfalls of that choice. An attorney may advise that it may be prudent to name a US citizen in the event that the non-US citizen is unable to be appointed or is not willing to serve. A DC lawyer can also assist a client with reviewing the issues and helping clients thoroughly consider their options for naming a guardian.
Some of the issues to consider when naming a guardian for a minor child is where the child would live, whether there are sufficient assets, and whether the named guardian is prepared to care for another child or children. For some parents, there is more consideration given to the the religious or lifestyle preferences of the guardian and how they the parent would have chosen their child to be raised. Finally, it is not uncommon for individuals to name their parents as guardian, but as a client-parent ages, they may no longer be the best choice to name as guardian.
Individuals may wish to consider whether naming a non-US citizen as guardian of their minor children is in their best interest. There could be complications with the timing of moving the child or the guardians’ availability in the United States. It is most parents’ worst nightmare to think that their child may be placed in foster care, but that might be the only option available, if the court has a prolonged process of being unable to identify the guardian or the appointed guardian has difficulty entering or remaining in the US until the process is complete.
Impact of Having a Non-US Guardian
A guardian is typically unnecessary until the death of both of the parents, at which point, the child will be in a state of upheaval and in a grieving process. In the midst of dealing with the death of their parents, naming a non-US citizen guardian may result in the child having to switch schools, leave their physical home, or move to another country. It may also result in a child leaving the rest of the support network that was established by the parents. Changes that significant could make for a more difficult adjustment for the child.
Restrictions on Guardianship
The judge has discretion to determine whether there are restrictions after a non-US citizen assumes guardianship. Judges can limit guardianships in any way that they see fit, which is a determination that is made on a case-by-case basis.