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Although it’s not fun to think about, part of planning for the future includes considering who will care for your minor children if you become incapacitated or die. If you have children under the age of 18, appointing a legal guardian now will not only help provide you peace of mind, but it can also help ensure a smooth transition for your children in a very difficult situation.

What is a Legal Guardian?

A legal guardian is someone other than a parent who has the authority to make decisions related to a child’s care and who will provide food, clothing, shelter, medical care, education, and other care-related items if something happens to the child’s parents. Often, parents appoint a relative, such as a child’s aunt, uncle, or grandparents, to fulfill the role. However, courts can also appoint a legal guardian, such as foster care, if no prior arrangement exists.

An estate planning attorney is an excellent resource for helping you set up a guardianship or make updates. Your attorney can help you choose a primary guardian and an alternate if the person you appoint is unable to take on the task. In addition, your attorney can help you solve for potential complications or situations in which your desired guardian lives far away. An estate planning attorney can also raise issues you may not have considered and offer a variety of options to help.

Before consulting an attorney, however, you can take these steps to prepare:

1 – Make a list of what’s important to you.

Is it important that your child’s guardian shares your religious views and values? What about your views regarding your child’s discipline, education, activities outside of school, etc.? Would you want your child to be able to move to where your appointed guardian lives (which may be out of state or out of the country), or would the guardian need to move to your residence? If you have more than one child, would you want your children to stay together? Determine which items are non-negotiable and on which issues you could be flexible.

2 – Identify one or more potential guardians, as well as potential alternates.

Taking on someone else’s child (or children) is a major, life-changing decision for a potential guardian, so expect to spend significant time on this part of the process. Some factors to consider include the age, physical and mental ability of your potential guardian, financial readiness to take on a guardianship, the potential guardian’s relationship with your children, and, if they have other children, their kids’ relationship with yours. If considering a couple, remember that many marriages end in divorce, and the couple may disagree on how to raise your child. You may want to specify that the chosen guardians serve “as long as they are married and not separated or divorced.” If such a factor is not important to you, perhaps you want to simply choose one person in the couple as guardian, and specify that they may serve “whether married or single.”

3 – Engage in deep, meaningful conversations with the potential guardians on your list.

Ask about their home life, childcare (if they work and would need to hire a caregiver), their family dynamic, their health, how they make financial decisions, and their comfort taking on a child or children, particularly if they are in the process of creating their own family. Discuss logistics, such as whether they would move to your residence or move your child to theirs. Express your concerns and listen to theirs. If you plan to leave an inheritance for your child, would you consider providing the guardian with funds to help with expenses? Outline any plans you have to make sure your child will be taken care of financially. When you are comfortable and you believe your potential guardian is comfortable, ask for their permission before taking action.

4 – Create or update your will.

Ideally, you and your child’s other parent should be on the same page about guardianship, including your choices for guardian and any alternates. That way, you can include those names in both of your wills. Depending on your situation, however, this may be difficult, particularly if you are divorced and/or are in a contentious relationship. Your estate planning attorney can recommend the best options for you. If divorced, it’s still critical to name your choice of guardian. Even though, upon death or disability, the other parent will be first guardian, you should name the person you would want to be guardian if the other parent were to become disabled or die. If you do not, you will be leaving it up to the other parent to independently influence the subsequent choice of guardian.

5 – Understand that you may change your mind down the road.

Let’s face it – things change. The sister who agreed to be your child’s guardian may now have children of her own and can’t take on one more. The cousin who agreed to be your alternate may now be in an unstable family situation. Your parents may no longer be in good enough physical shape to take on young children. You may have remarried. As with every estate plan, it’s a good idea to review your situation if something major changes or you haven’t updated your plan for a few years.

The process of naming a guardian for your children may seem overwhelming at first, so it may help to break it into smaller tasks and add them to your calendar to stay on track. As a parent, you want the best for your children. Take time to plan now, instead of potentially leaving their futures to strangers.


This is intended for informational purposes only and should not be construed as personalized investment or financial advice. Please consult your investment and financial professional(s) regarding your unique situation.

Author Michael T. Cyrs Senior Director of Wealth Transfer

Mike has nearly 30 years' experience as a private attorney and senior wealth transfer advisor concentrating in complex estate and business succession planning matters; estate, gift and generation skipping taxation; and advising clients regarding administration of highly taxable estates and trusts.

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