What is a Legal Guardian?

YOU ARE HERE: Home » Areas of Practice » Wills / Trusts / Estates » What is a Legal Guardian?

A legal guardian is an adult appointed to care for your child if you and his other parent both die before he reaches adulthood. While the thought of that might make you shudder, you need to choose a guardian so the courts don’t do it for you.

If you think your mother or sister will automatically receive custody of your child if you die, you’re mistaken. Unless you specifically name a guardian in your will, anyone can step forward and ask for the job, and a judge will decide who wins custody.

If you and your spouse or partner has separate wills, you should name the same person as the guardian of your child to avoid conflicts. Many parents also name an alternate guardian in case their first choice is unwilling or unable to accept the responsibility.

How do I choose the right person?

Deciding who will raise your child in your absence is one of the toughest decisions you’ll face as a parent. Many parents say the first step is to admit that no one is good enough.

Once you get past the idea that the best parent for your child is you and no one else can compare, you can move on to choosing the next best person. Make a list of all the possible candidates, and then sit down with your partner and talk over the pros and cons of each one.

Here are a few things to think about while you’re going through the process:

Whose parenting style, values, and religious beliefs most closely match your own?

Who is most able to take on the responsibility of a caring for a child — emotionally, financially, physically, etc.?

Who does your child feel comfortable with already?

Will your child have to move far away, and will that pose any problems?

Does the person you’re considering have other children? If so, would your child fit in or feel lost in the shuffle?

Does the person have enough time and energy to devote to your child?

Once you narrow your list to a few key people, talk to them about how they’d feel about appointing them the guardian of your child. The conversations may reveal feelings and attitudes that will help you make your final decision. Perhaps one person will express a clear desire to play this role, or you’ll find out that one of your choices isn’t willing to take on the responsibility.

Guardianship can be flexible over time. You may want your parents to be your child’s guardian.  However, it’s possible they’ll grow too old to handle the job later.  In this case you can name them as guardians for a limited period of time (for example until your child is 8). After which responsibility passes to a sibling or friend. However, a change like this may be difficult on your child, so carefully consider the ramifications.

The person you select as guardian may have a huge task ahead. She would have to meet your child’s emotional and physical needs and raise your child to be a competent and fulfilled adult. Take the time to document your hopes and expectations for raising your child in a letter and attach it to your will.

Considerations in choosing a guardian include the education you have in mind for your child and what religious beliefs and values you think are important. Reread the letter every year or two and update it if necessary.  Talk to other parents you know about how they came to choose a guardian for their children.

Can I name a different guardian for each of my children?

Most people want their children to stay together, so they choose the same guardian for all, but if you want to, you can name a separate guardian for each child. You might consider this alternative if your children are far apart in age or if each one has a special attachment to a different person.

For example, your daughter may be close to her grandparents, while your son feels attached to his uncle. This kind of arrangement can also work if you have children from different marriages who have their own sets of relatives and friends. Most importantly pick the person who’s best able to meet each child’s needs.

What if I’m not married to my partner? What will happen to our child if I die?

There are three circumstances to consider here: You and your partner are the biological parents of the child; you are the biological parent but your partner isn’t; or neither of you is a biological parent.

If you are both the biological parents, then you both have the presumptive right to be the guardian of your child in case the other partner dies. In this case, a judge would automatically grant custody to a biological parent. But the surviving parent could step forward and say he or she is unable or unwilling to care for the child — one more reason to name a guardian in your will.

If one partner is the biological parent and the other is not, the nonbiological parent has no automatic right to be guardian if he or she has not legally adopted the child. In this case, if the nonbiological parent isn’t named in the will as the guardian of the child, the judge will not automatically grant guardianship to that person.

Adoptive parents have the same presumptive rights as biological parents. That is, the judge will automatically grant custody to an adoptive parent if the other partner dies.

What if I don’t want my child’s other parent to be his guardian when I die?

If you’re separated or divorced, you may feel strongly that your child’s other parent shouldn’t have custody if something should happen to you. The law is not on your side.

A judge will almost always grant custody to a biological parent unless the surviving parent has legally abandoned the child by not providing for or visiting the child for an extended period or is clearly unfit as a parent. Usually it’s difficult to prove that a parent is unfit unless he or she has serious problems such as chronic drug or alcohol use, mental illness, or a history of child abuse.

That being said, you could explain your case in a letter and attach it to your will. The judge will take all information into account when making a guardianship

Should I name a different person to manage the property I leave to my child?

The choice is yours. Some parents name one person to be both the property guardian or trustee, managing their child’s finances, and the personal guardian. This can simplify things and give the guardian access to money when it’s needed without having to check in with someone else.

Other families separate the responsibilities. “We know the best home for our children would be with my sister,” says Kathy, a mother of two from San Diego, “but we chose my husband’s brother to manage the property because he’s good with money, and I trust him to make financial decisions.”

Beth in Carlsbad chose a lifelong friend with kids as personal guardian for her child, but named her own parents as the property managers. “I wanted my parents to have an active role in my kids’ upbringing. My friend lives nearby and gets along well with my parents. So, this way, my parents will see the kids regularly and share in some of the major decisions.”

Consider how well your personal guardian and property guardian get along. If they have a good rapport, separating roles could work well. Problems are bound to arise, so choose two people who can work on solutions together.