While the odds of needing a legal guardian for your child are low, the consequences of not naming a legal guardian in your will or a separate document can be significant. A court would have to choose somebody to care for your child without your input.
In our globalized world, it is not uncommon to have close friends and family members who live in a different country. This raises the question of 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, it is ultimately up to the court to approve a 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. There could be tax complications if a non-citizen is also named as your child’s trustee, but not being a citizen is not enough to be dismissed by the court.
How Guardianship Works
As a parent, you are legally responsible for supporting your child until they reach the age of eighteen. This means ensuring that they receive medical care, education, food, housing, and clothing. If you were to unexpectedly die or become incapacitated, somebody needs to step in and fulfill your parental duties.
Normally, this would be your child’s other legal parent, but there is the possibility that the other parent is unable to step up. There is also the possibility 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 takes over caring for your child is known as your child’s guardian. Ideally, this 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 in their estate plan. Surprisingly, around 60 percent of Americans do not have a basic will. Without written instructions about who should care for your child in your place, the matter is left up to the state. The 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.
Even if you have a will and name a guardian, it is still ultimately up to the court to decide if that person is qualified to serve in that role. In other words, the guardian named in your will is just a candidate. A family member could challenge your nomination in court, or the court may decide 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. In Florida, a guardian must be either a resident of Florida and 18 years old or a non-resident who is related to the ward by blood, marriage, or legal adoption. A felon cannot be appointed legal guardian in the state of Florida.
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, 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. Compelling arguments could help make your case.
Guardian of a Minor versus Guardian of the Property
The guardian of the person is the person in charge of being guardian for your child. The guardian of the property is the person in charge of administering the finances you have set aside for your child.
Sometimes, the same person serves as both a legal guardian and a guardian of the property. You can also divide these roles. A legal guardian may be a great caregiver but bad with finances, so it may be wiser to appoint someone else to make financial decisions.
If the guardian is not a US citizen and a trust has been set up for your child’s benefit, you might be hesitant to unify the role of legal guardian and the person managing the child’s financial matters. 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, including potentially higher taxes, meaning less money for your child.
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 your options.
If you decide to choose a non-US citizen as your child’s guardian, we can advise you about factors to consider. We recommend reviewing your guardianship wishes, and your estate plan in general, every few years, especially after a major family event.
To start planning for the future now, please contact us to schedule an appointment.
