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  • Writer's pictureLeslie A. Farber

5 Things to Know About Naming a Legal Guardian for Your Children


Mother and child

Establishing guardianship for your children is not an easy task, but doing so is one of the most important protections you can offer them.


In most states, having minor children and dying without a will can have devastating consequences. If you die and your child or children are without a surviving parent, they will need a legal guardian to care for them. If you have not designated someone, the probate court will do it for you – and it may not be the best choice.


Preparing in advance will not only give you peace of mind, it may prevent your children from experiencing the additional trauma of an uncertain future or the stress of a court battle over who will care for them. Here are five important considerations to help guide you through the process.


1. Understand the Guardian’s Role

A legal guardian will have custody of your minor children, which means they will be responsible for the general well-being of your children until they are legal adults. This typically includes managing living arrangements, providing food and clothing, and making healthcare and educational decisions. If you have set up a trust, they may manage and administer funds as needed, as well as distribute any remaining funds from your estate at the time your children become adults.


2. Take Time When Selecting a Guardian

There are numerous factors to consider when evaluating potential guardians, but for most parents the goal is simple: to find someone who will love and care for their children as much as they do. Someone they can trust to raise their children with the same values and morals that they hold.


Who you choose is a very personal decision, but don’t overlook basic, practical factors such as the person’s financial situation, geographical location, and whether they are physically up to the task (especially if you have young children). If the person has children, take their parenting style into consideration. Many people choose grandparents, aunts and uncles, siblings, or even close family friends. However, naming a married couple as co-guardians could create issues if they divorce. You may be better served to name one the guardian and the other an alternate. In fact, many parents will appoint an alternate or back-up guardian to step in should their first choice becomes unable to serve.


3. Have a Conversation with the Potential Guardian

Before you finalize your decision, have a conversation with the person or people you have selected. It is important for them to understand your expectations and their responsibilities, and to ask if they are willing and able to handle this commitment. Discussing this upfront will allow them to be involved in the decision and to be prepared mentally and emotionally for the role. If your child is old enough to be included in the selection process, let them know who you have chosen.


4. Provide Detailed Instructions

If you have specific requests, hopes or desires related to your child or children’s upbringing, write them down and keep them with your estate planning documents. You might want to share details about your children's care, such as medical conditions or health-related issues, or their educational and/or spiritual needs. This will ensure that your guardian is well aware that you have dreams of your child attending a certain college, or want your children raised in a particular religion.


5. Take the Necessary Legal Steps

You may know exactly who you want as your child's guardian, but it is critical that you put it in writing to ensure that your wishes will be followed. You can name the guardian in your will, which you can draft online. However, when making plans that involve the future well-being of your children, it is worthwhile to enlist the services of a local estate planning attorney who can advise you of potential complications.


It is a good idea to review your choice every five to 10 years. Should circumstances change with you, your children or your designated guardian, you can simply update your will.

Keep in mind that there is no such thing as a perfect guardian. The best guardian is the one you believe will take the best care of your children. If you have questions about naming guardians for your children or drafting your will, please contact us at 973.707.3322 or LFarber@LFarberLaw.com.


The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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