Choosing A Guardian For Your Child

The question:

What is a guardian?  And how do I choose someone to be my child’s guardian?

The answer:

As a parent (biological or legally adoptive), you are the natural guardian of your child.  You are responsible for the care, education and supervision of your child, until age 18.  If both parents are deceased or unable to care for their children, a guardian must be appointed by the court to take custody of the children and provide for their needs.

The only way parents can have a say in the choice of a guardian is by nominating one in a writing prior to their death or incapacity.  If you do not appoint a guardian in writing prior to the need, then the court must decide without the benefit of your opinion, who will do the best job of raising your children.

Who do I choose as guardian?

Choosing a guardian is the hardest part of estate planning.  Ask yourself this question: If I am unable, who do I want to raise my child?  There are many factors to consider and no one person will be perfect.  The following are some thoughts to consider:

  1. How old is the guardian?  The guardian must be 18, and should be able to serve until your child is 18.  For example, if your youngest child is 3 years old, you need to choose a guardian who can potentially raise him or her for the next 15 years.
  2. Will your children stay together?  Most parents will want their children to stay together.  The guardian must be physically and emotionally capable of caring for all of your children.
  3. Does the guardian share your value system?  Can he or she give your children the same moral and religious upbringing that you would have provided?  Are your core values in alignment?
  4. Is the guardian willing to serve?  The person you are considering may not be willing to accept the responsibility.  It is always smart to appoint an alternate guardian in the event that your first choice is unable or unwilling to act as guardian.

Who can nominate a guardian?

Laws vary by state, but in California, for example, only the parent(s) of the minor can legally nominate the guardian.  If the parent does not nominate a guardian, then the court will appoint a guardian from the people who have submitted petitions.  The CA Probate and Family Codes set out WHO has priority to serve.

It is important to remember that a court proceeding is always required to appoint the guardian.  Having a written nomination allows you to nominate the person that you want the court to appoint as guardian.

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