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Guardianship In A Will For Children

You can designate a guardian for your children as part of your will. It’s best to list a single guardian and an alternate guardian in the event that the first guardian is unable or unwilling to serve. Some parents choose to appoint a married couple as guardians for their children. Although you have the right to appoint co-guardians, two guardians may disagree or even divorce. Therefore, if you choose to appoint two guardians you should list both guardians separately, so that they each have the ability to make legal decisions on your child’s behalf.

Who Should I Chose as a Guardian?

Selecting a guardian is a very personal decision. Parents often choose guardians with a parenting style similar to their own and who share the same moral beliefs. Your selected guardian may be an extended family member or a very close friend. There are no requirements that a guardian must be married or have children. In fact, you should consider a potential guardian’s existing family obligations and assess whether that person has the time and resources to care for your child. Some other factors you may consider when selecting a potential guardian include:

  • the guardian’s age (must be 18)
  • the guardian’s physical and emotional health
  • the guardian’s responsibilities for other children
  • the guardian’s religious background and moral beliefs
  • the guardian’s work and community commitments, and
  • the guardian’s financial assets.

When in doubt, you should ask any prospective guardians how they would feel about raising your children in the event of your death. Their answers may make your decision easier.

Can I Appoint Different Guardians for Different Children?

If you have children from different relationships, you may want to appoint a separate guardian for each child. Specifically, a child from your first marriage may have no relationship with your current father-in-law, even though your other children and father-in-law share a strong bond. It’s important to take a child’s family ties and relationships into account when appointing a guardian. Even when children share the same parents, children with a large age gap may be best suited to different guardians. For example, you may want your mother to serve as guardian for your 15 year-old daughter because they share a strong bond. However, your aging mother may be ill-suited to serve as guardian for your infant. Your family’s unique circumstances will affect your decision about how many and which guardians you choose to serve in your case.

You can as well appoint a guardian to care for your children’s day-to-day needs and a separate person to manage your children’s financial estate. Choosing one person for both duties can make sense. But sometimes it’s actually a good idea to entrust a separate person to manage your children’s inheritance, particularly if you have a large financial estate. A second guardian can ensure that the children’s primary guardian is spending money prudently and can protect the children’s inheritance.

For example, you may have selected your best friend as guardian for your children because of her moral values, good humor, and outstanding parenting abilities. Yet, your best friend may be terrible with money. In that case, you could appoint a separate adult to serve as the trustee or custodian of your children’s estate to oversee finances and expenditures that your best friend makes on the children’s behalf. A guardian over the estate could also reign in reckless spending, if any, by the children’s primary guardian.

What If I Don't Want My Ex to Raise My Children Upon My Death?

Although a parent’s rights to appoint a guardian are broad, a parent can’t appoint a guardian who interferes with the other parent’s right to custody. This issue comes up frequently in divorce cases. Upon your death, a judge will grant custody to the other parent, unless that parent’s rights have been terminated or the parent is deemed unfit.

Factors to Consider When Deciding on Guardianship of a Child

Choosing the guardian for your child is an extremely personal decision, but there are some common factors that parents should consider when coming to this decision. Some things to think about include the following:

  • Personal and religious values: You most likely would prefer that your child is raised in a manner similar to how you would have raised him or her, which means that the more your chosen guardian’s personal beliefs and goals are in line with yours, the better.
  • Keeping children together: If you have more than one child and are determined to keep them together, you must consider this in the choice of guardian and specify as such in your last will. Can your chosen guardian handle all of your children, emotionally and otherwise, and will the families blend well if the guardian already has children of his or her own?
  • Financial situation: While ideally you will have provided financially for your children through estate planning, it is a good idea to consider the financial position of a potential guardian when making your decision. Some parents choose to name someone else besides the chosen guardian to handle a child’s inheritance; this is to prevent one person from having control over everything regarding the child, so this may be something else to consider regarding finances.
  • Special needs: If you have a child with special needs, can your chosen guardian handle the care of your child, both financially and emotionally?
  • Age of potential guardians: Although grandparents are often the first choice for parents in choosing guardians, be sure to consider the age and general health of grandparents when deciding. Will they be able to handle the physical demands of the guardianship of minor, especially if your children are still quite young?
  • Location of potential guardians: Will your child have to move far away from your home and everyone they know? How far away will other family members and important people in your child’s life be? Will your child have to change schools?

After choosing your guardian, although not legally required, it is highly recommended that you have a frank discussion with the person you would like to select as the guardian of your child to make sure he or she is willing and able to take on this esteemed role.


How to Establish Legal Guardianship in a Last Will

Establishing guardianship in a will can be achieved by including the information in the document, which then must be properly executed according to state law (signed, witnessed, etc.). You may also be interested in using guardianship forms, which provide a template for you to include this information in a last will, and you can also include a supplementary document explaining your rationale if you so choose. Note that if your child’s other parent is still alive, you should make sure he or she also names the same guardian in his or her last will and testament in the event of both of your deaths. Consider, as well, naming an alternate legal guardian should your first choice be unable to take on the responsibility for any reason. While it may not be a pleasant subject to think about, once you have included your choice for child guardianship in your last will, you will have greater peace of mind knowing that your children will be well taken care of in the event of your death. After all, providing for your children is your most important duty as a parent, and part of that is making sure they are in good hands no matter what happens.

Steps For Choosing a Legal Guardian for Your Child

Choosing a legal guardian isn’t easy, but it’s important and should be done as early as possible. No matter how young and healthy you are, accidents and unexpected illnesses can occur at any time.

When deciding who your child’s guardian should be, here are nine things to keep in mind.


  1. Whether the Courts Will Approve

Courts can opt to refuse guardianship of a child, even if a guardian is named in your will. Typically, the courts require the guardian to:

  • Be a legal adult
  • Have the time to raise a child
  • Be physically capable of parenting
  • Have the income to effectively raise a child, whether on their own or in conjunction with money you leave specifically for your child’s care

Many of these requirements have gray areas. Therefore, including a letter explaining how you chose your child’s guardian can be helpful (more on that later).

  1. Parenting Skills

If your potential guardian has children, consider how you feel about their parenting skills; if they don’t have children, consider how they interact with and talk about children in general.  You could also consider any training they may have in working with children, such as if they work in education, psychology, or child welfare. While no degree or work history makes someone a perfect parent, these experiences may help.

  1. Beliefs

When it comes to religious, moral, or ethical beliefs you want your child to be raised with, ensure your potential guardian’s beliefs line up with those. If someone is otherwise an ideal candidate and you fully trust them to keep their promises, consider working out an arrangement in writing.

  1. Financial Stability and Situation

Consider the finances of your child’s potential legal guardian. You want to ensure your child is in a stable situation and that caring for your child won’t put the guardian in a rough spot.

To be clear: Wealthy people aren’t inherently great parents, and people who aren’t wealthy aren’t inherently terrible parents.  Regardless of a legal guardian’s financial situation, consider creating a trust for your child, if possible, as it can help offset costs.

  1. Current Location and Living Situation

When a child loses their parents, they’re already going through a hard time; it may be even harder if they must move to a new school, state, or country. If your child is on a 504 plan or Individual Education Plan (IEP), discuss it with your chosen guardian. Make sure the details and requirements of the plan are clear. If your preferred legal guardian lives elsewhere, it’s worth discussing if they’re willing and able to move to where your child is. For many, this is impossible. So, consider a transition plan. Is there someone nearby with whom your child could stay through the end of the school year?

You may name a legal guardian who lives in a different country, even if they aren’t a Utah citizen, so long as they meet all other requirements. Most lawyers recommend naming an interim or backup guardian, as inter-country guardianship of a child can sometimes take a while.  Additionally, while plenty of people have been happily raised in small homes, consider if the potential guardian’s home is large enough to support an additional person.

  1. Age, Health, and Stage of Life

Though it may seem crass to factor in how old or healthy an otherwise qualified guardian is, you should consider whether you want to risk your child losing another parent-like figure while they’re still young. Additionally, if your chosen person is an empty nester or retiree who loves their current lifestyle, they may not want to rear children at the stage of life they’re in. They may say “yes” because they feel obligated, but this doesn’t set them or your child up for success.

  1. Your Children’s Wishes

When your child is old enough, talk with them about what legal guardians are and who they would want to care for them if you were gone. Consider giving them a few options of people you’re comfortable with and with whom you’ve already spoken. Most states let kids have a say in guardianship starting at age 14, regardless of what your will says. So, having this conversation before that age may be wise.

  1. Will They Take Your Pets?

Your child’s guardian isn’t required to take your pets. But losing a beloved pet may cause additional trauma for a child. If a guardian can’t take your pets, try to find another person who can take them and will allow your child to visit them.

  1. If They Want to Be a Guardian for All Your Children—or at All

Before asking someone to be a guardian for your child, no matter how perfect they’d be, ask yourself: Would they agree to it out of obligation? Or would they agree because they want to be your child’s legal guardian? Additionally, it’s worth considering if this person would want to be a guardian for all your children. While you don’t need the same guardian for all your children, if you want your children to stay together, think about whether your preferred guardian could or would take them all.

How To Make Someone the Legal Guardian of Your Children

When legally assigning a guardian it is important to mention the chosen person in either your will or official guardianship documents. When writing your will, make sure to mention all of the guardians’ information and their relationship to you. To make sure you do not miss anything important, it is the easiest to use services with already drafted questions for you to answer. Make sure that if the other parent is alive, they mention the same guardian in their will as well. You can assign a co-guardian, but that often ends in legal problems when the guardians split. Here are a few general steps that always apply in the process:

  1. Ask your chosen guardian if they’d be willing to take on this responsibility. You should also speak to a backup guardian, in case your initial choice declines. Don’t assume anyone would be willing or able to do this.
  2. Put a clause in your will regarding who you want as your child’s guardian(s).
  3. Include an explanation letter in your will explaining your choices.
  4. Officialize your will by having the required people (varies by state) sign it.

If there is someone you don’t want to get guardianship of your child, include this as well. These are not easy questions to ponder but well worth the time in order to make measured and informed decisions. Planning for the unthinkable means less time worrying that you haven’t ensured a bright future for your family. And always include an attorney in your process when you can’t find the answers elsewhere.


Making Changes to Legal Guardianship

You may need to change your legal guardian. Thankfully, this process isn’t too different from how you added them initially: You need to rewrite your will.  Additional documents are allowed instead of a rewrite but going that route can make the courts or your family question if the information is replacing to adding to the former will.

Rewriting a will to change your choice of your child’s legal guardian upon your death (or anything else) looks the same as writing your will for the first time.  The only difference is it needs to state this new will invalidates all previous wills. Triple check the dates on your will before finalizing things.

Many believe that destroying your older wills renders them invalid, but if there are additional copies out there, they can easily be brought into court.  Don’t forget to remove your old version of your will from your digital legacy service and replace it with the new one. Without this testimony or correct dates in your will, family may be able to argue the older version could still be valid—not a risk worth taking, particularly when legal guardianship of your child is involved.

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