How To Choose A Guardian for Minor Children or Dependents

If you have children who are under the age of 18 (“minor children”), you should name a guardian who will raise and care for your children in case you should die. 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, he or she will likely be granted guardianship, no matter who you name in your will as your desired guardian.

Reasons for choosing a guardian for minor children

By naming a guardian in your will you can have a voice in deciding who will raise your child if you should die. If you die without a will or fail to name a guardian for minor children in your will, the court will determine who should get custody over your children. 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 they think will best serve the child. Naming a guardian in your will is your opportunity to make your opinion known and have a say in the matter of who will raise your child.

What it means to name a guardian for minor children

Naming a guardian in your will can be understood as suggesting the person you'd like to care for and raise your child if you should die. However, just because you've named someone as guardian in your will does not mean that the person you've named will necessarily end up being the child's guardian. Unlike material possessions, a child is not property and cannot simply be bequeathed to another person, which is why the courts get involved in this issue. Even if you've named a guardian in your will, a judge (usually from Family Court, though possibly from Probate/Surrogate Court, Juvenile Court, or District Court) will have the ultimate say in deciding who will be your child's guardian.

As your child's parent, your opinion on who should get custody of your child matters very much to the court, and the person you named in your will should take priority in the judge's mind. However, if the child has another natural parent who is living and capable (even if that person is not your spouse or never was your spouse) he or she may necessarily be granted custody according to the laws of your state.

Types of guardians for minor children

There are two types of guardians for minor children: “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.

To learn more about the duties of a Guardian of the Person, see our article Guardian of the Person.

To learn more about the duties of a Guardian of the Estate, see our article Guardian of the Estate.

Deciding who to choose as guardian

Choosing a guardian is not a decision that most parents take lightly, and it can be very challenging to think about who you would like to have raise your children if something should happen to you. Learning about the responsibilities and duties that each guardianship entails can help you as you choose someone to name as the guardian for your child or children.

For advice on how to choose a Guardian of the Person, see our article How to Choose a Guardian of the Person.

For advice on how to choose a Guardian of the Estate, see our article How to Choose a Guardian of the Estate.

Naming a guardian for dependent adults

If you are the parent or guardian of a dependent adult, you will want to name a guardian for him or her in your will. The guidelines and process for choosing a guardian for minor children also apply to choosing a guardian for a dependent adult. 

Comments