Trusts and Estates

Picking the Best Legal Guardian for Your Child

No parents want to imagine that they might die while their child or children are still young. Consequently, many parents procrastinate when it comes to writing a will, which means that many parents have not taken the legal steps to name a guardian for their children in the unfortunate event that they die.

A guardian (sometimes known as a conservator) is someone who has the legal authority to care for another person - usually a child or adult who is not capable of caring for himself or herself.

Why Name a Guardian?

When a person dies without a will, their assets are distributed according to a fairly standard formula (first to their spouse, then their children, then to their parents and siblings). But in the unfortunate event that both parents die without having named a legal guardian for their children, there is no standard formula for determining who becomes guardian to their children. A judge is responsible for deciding who would make the best guardian.

Parents should know best about who is best-suited to become guardian of their children should both parents die. Therefore, both parents should name a guardian for each child in their will. Although a judge may still need to sign off on the appointment, most courts will respect parents' wishes. In support their decision, parents may want to write a letter that explains their reasons for designating the particular guardian.

Who Should You Select to Serve as Legal Guardian?

Although it may be difficult to think about, parents should think carefully before selecting a guardian for their children. This isn't a popularity contest. Nor should you pick someone simply because they might be angry, hurt or mad if they weren't selected.

Among the issues to consider:

  • Is the person legally considered an adult (which, in most states, means they are at least 18 years old)?
  • Is the person willing to serve as guardian?
  • Does the person have a good relationship with your child or children?
  • Does the person share your values, ethics, spiritual beliefs and morals?
  • Can the person afford to serve as guardian for your children?

If you have more than one child, you should also consider whether you want the same person to be the guardian for all of your children, or if it's more appropriate to name a different guardian for each child. You might consider naming different guardians if your children are not close to each another, and they each have a strong relationship with a different adult.

You should discuss your decision with the prospective guardians to ensure that they feel comfortable with the responsibility. It's also acceptable to name a backup guardian in case circumstances change and the person who is your first choice is unable to accept the responsibility.

When Should You Name a Separate Guardian and Custodian?

When considering possible guardians, you should also ask yourself whether the potential guardian is good with money and will be able to effectively manage any inheritance that's left for your child. If you believe that the best person to raise your child is not necessarily the best person to manage your child's inheritance (and vice versa), then you can name a separate person to manage the child's finances. This person is usually called a custodian or guardian of the property.

What Happens if Only One Parent Dies?

In the United States, if one parent dies, the surviving biological or adoptive parent receives automatic custody and legal guardianship of the child unless the surviving parent has abandoned the child or is otherwise unfit. If you think your child's other parent shouldn't be the guardian in the event of your death, it's important to talk to a lawyer about your legal options.

Questions for Your Attorney

  • Does the guardian of my child have to be a relative, and can my family members challenge the appointment of the guardian who I name in my will?
  • Do guardians tend to work well together if one guardian is named to take physical care of my children, and another guardian is named to manage the assets I leave behind to care for them?
  • If my child's grandparent or other older relative are in good health, can I name one of them as a guardian regardless of their advanced age?
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