Why This Guide Exists
The purpose behind this Muslim Guardianship guide is to help Muslim parents, particularly those in the United States, navigate the decision-making process involved in Selecting guardians for their minor children. While it is indeed less common than it used to be, you still see situations where children grow up for at least part of their childhood Without either of their parents being alive.
One of the things that I had also found is that guardianship is a particularly tricky issue for many parents, in fact, it is often the main bottleneck that prevents them from doing their estate planning, including the mandatory plan based on the Islamic rules of inheritance.
The choice of Guardian for a minor child is often not intuitive for many parents. Also, because of the nature of the global economy, Parents of young children find themselves living far away from their own extended family. It is also difficult for many families to make Good friends locally that they might trust enough to name as guardians for their minor children.
I am going to organize this Muslim Guardianship guide by describing several relatively common planning scenarios and propose solutions for each of them. The point though is that whatever “block” you and your spouse may be going through, there is typically going to be some solution that will help you get a plan done. It may not be 100% perfect, but it is probably going to be far better than doing nothing at all. Doing an Islamic Estate Plan is better than not doing one.
Muslim Guardianship: How we name them
In general, you name guardians for your minor children in the last will. We do not name guardians in living trusts or powers of attorney. In many states, including places like California, you can include guardians for minor children in a separate document. A ” Nomination of guardian form” is an example. I have a template that provides for guardianship available in our Islamic Estate Planning resource guide, you can download here.
Who We Name
The vast majority of people will name parents and siblings as guardians for their minor children. In some cases, couples will name very close friends who can also fill this role well.
In general, you want to name people who are (1) capable of taking the role and (2) shares your values.
Occasionally, parents will make the mistake of naming individuals based on seniority or the thought that if they do not designate a particular individual, say the eldest brother of the husband; this would cause offense and tension within the family. Who you name as guardians for your minor children should be about the welfare of your children and raising them properly, not about smoothing over petty grievances.
Parents Don’t Agree
One relatively common scenario is when a husband would insist his family members should be designated as guardians for minor children and the wife might think it would be better if her parents become guardians. The problem we come across here is potentially deeper than who gets to raise your children. It may even be who gets to see your children at all.
There is no such thing as “grandparental rights” in the same way there are “parental rights.” after the death of a parent, it is possible that the grandparents of the deceased parent’s children may be cut out of the lives of their grandchildren completely. Uncles and aunts may similarly be cut off from relations as well. So if a mother’s brother in Cleveland becomes a guardian for minor children, there is no reason to think the father’s sisters in Oregon and parents in Texas will have much of a relationship with the children.
Sometimes, there are tensions just under the surface between in-laws. Occasionally there are well-stated arguments against someone acting as guardian for the minor child. Whatever the case may be, the parents of the child during an impasse and because of this, they become frozen from making any decision. They cannot do their estate planning at all.
Solution: use a guardianship panel. This is not a solution as good as naming a successor guardian. However, it is far better than the alternative, leaving it to a judge who does not know anything about you or your family. The way a guardianship panel works is that both the husband and wife name the same number of people, presumably friends or family, who would decide, after the death of both of them, who the guardian for the minor child will be.
If there are any fears of what family members may do if given the ability to be a guardian for the minor child, for example, cutting them off from other family members unjustly, you should state this in the planning process. A lawyer can address this.
Always name individuals as guardians for minor children. This is unless you are nominating a guardianship panel to name those individuals. I don’t recommend naming two people to serve at the same time. A husband and wife jointly acting as a guardian, for example, could be a problem.
Example: Salma wants to name her parents, Habib and Aisha, as guardians for minor children. She should consider listing them separately, prioritizing either her mother or her father and then naming the other one afterward. She can do this if both parents are individually capable of taking on the role of guardian. When planning, Salma should consider a time may come when her parents are not together anymore, either because of death or divorce.
Of course, naming your parents is going to be a function of how capable you believe they are of taking on the role. As we age, it becomes more challenging to take on responsibilities that we had years ago.
Of course, if you do name grandparents, consider revisiting this decision every few years.
Asking for permission
Naming somebody as a guardian for your minor children does not mean you are “sentencing” to them to this rule in the event of your demise. What it does say though, is that you are nominating somebody for this role. A person who is nominated does not have to be the guardian. This is why you name backups. There is a court process where ultimately a judge will appoint the guardian.
Also, people have changed circumstances all the time. Say you ask your brother now if he would take care of your children if you were to die, and he says yes, and probably think it was a dumb question. If you were to die two years later, what if he is no longer in a position to do it? You cannot hold him to that promise. You must name backups.
This guide is about Muslim Guardianship. Of course, many of us have friends and family who are Non-Muslim and who we trust. There is no specific Islamic rule against naming non-Muslims as guardians. Many will advise that this is a bad idea just because of how instilling religion in children is to central to what Muslim families often do. While non-Muslims may make sincere efforts to do this, it may not be the same thing. However, in certain circumstances, there may be no real choice. You should name Muslims when you can, however.
Immigrant families face this problem most, and many Muslims in the United States are immigrants. Many Immigrant Muslims, as well as non-immigrants on work visas, don’t have close family members nearby. Parents, siblings and even close friends live on the other side of the planet. The preference is to name guardians who live overseas. If the children’s parents both passed away, they would want their children to live with their family abroad.
There is no rule against doing this. Planning to send children overseas is often the correct solution. The complication is that it takes time to make things like this work. Also, it may not work, because of political risks overseas, such as war, and a Judge may not allow it for a variety of reasons specific to the case at the time. So you need both a stopgap and a backup.
You generally want a temporary guardian who can take care of your children until your permanent nominated guardian can come to the United States to pick up your child.
Most of the time, this won’t be an issue, since a guardian may not want compensation. However, guardianship is a judicial proceeding. A Judge must typically award compensation for it.
What you should do
Guardianship is an essential part of an Islamic Estate Plan. It requires careful consideration, along with everything else. You can nominate guardians yourself in a document if you cannot afford an Attorney. However, an Estate Plan is always best done with counsel.
If you have not already downloaded our Islamic Inheritance resource guide (which includes templates information) you can do it here.