How to Choose a Guardian Before a Court Does It for You

Why It Matters

  • If you don’t choose a guardian for your children or dependents, then it will be up to the courts to decide.
  • You can name different people to care for your children and care for the money meant to provide for them.
  • It can be extremely difficult to choose a guardian, so make sure you’re picking someone who will do the job right and not someone out of obligation or convenience.

Everplans tkc.profilePicture Written by: Everplans
April 12, 2018

1 Min readClock Icon

If you have children under the age of 18 (“minor children”) and you haven't named a guardian, you should consider really doing it. Like, right now.

The role of the guardian will essentially be the role you have now as a parent — caring for your children, acting in their best interests, and providing for them physically, emotionally, psychologically, spiritually, and culturally.

If the child's other natural parent is alive and competent, they will likely be granted guardianship, no matter who is named in your will as your desired guardian.

Reasons for choosing a guardian for minor children

By naming a guardian in your will, you have a voice in deciding who'll raise your child if something happens to you. If you die without a will or fail to name a guardian, the court will determine who should get custody over your kids.

If your child's other parent is still alive (whether you're married or not), the court will usually grant custody to that person. However, if the child's other parent is unfit, unwilling, deceased, or otherwise unable to care for the child, the court will appoint someone it thinks will best serve the child. If there’s no one suitable, your child could go into the foster care system. Not too appealing, right?

What it means to name a guardian for minor children

Just because you've named someone doesn't mean that person will necessarily end up being the child's guardian. Unlike material possessions, a child isn't property and can't simply be bequeathed to another person, which is why the courts get involved. A judge (usually from family court, though possibly from probate/surrogate court, juvenile court, or district court) will have the ultimate say in deciding your child's guardian.

Don't let this discourage you at all. Your opinion on who should get custody matters very much to the court, and the person named in your will should take priority in the judge's mind.

Types of guardians for minor children

There are two types: “guardian of the person,” who handles child rearing, and “guardian of the estate,” who handles the child’s finances. You may choose one person to fill both these roles, or you may choose different people for each role.

Deciding whom to choose as guardian

Choosing a guardian isn't something parents take lightly, and it can be extremely challenging to think about who you'd like to raise your children. Learning about the responsibilities and duties that each guardianship entails can help you decide.

Naming a guardian for dependent adults

If you’re the parent or guardian of a dependent adult, you need to name a guardian for that person in your will. The guidelines and process for choosing a guardian for minor children also apply to choosing a guardian for a dependent adult.

Things to Consider

  • If you have kids or care for a special needs adult, it’s imperative that you name a guardian if you haven’t already.
  • If you’re worried about your guardian’s fiscal responsibilities, you can name another person to manage the money.
  • Make sure the person you choose will raise your children the same way you would.
  • Be sure and check who you named as a guardian every few years to make sure that person is still up for the task.

This article is provided by Everplans — a life and legacy planning company dedicated to transforming the way people get their families organized. For more information, visit: everplans.com

Neither Transamerica nor its agents or representatives may provide tax, investment, or legal advice. Anyone to whom this material is promoted, marketed, or recommended should consult with and rely on his or her own attorney regarding the particular situation and the concepts presented herein.

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