August 18th, 2021

How to Choose a Guardian

It’s considered morbid to think about dying before your children reach adulthood. No parent wants to miss out on watching their little ones grow up, let alone have to determine who is worthy to step in and raise them how they would. Choosing a Guardian as part of a Will can feel daunting, and it sometimes holds parents back from even creating important estate plan documents. To help parents make this tough decision, read on for tips on how to choose a Guardian.

How Courts decide Guardianship

Should you pass away, and your child has no surviving natural parent, the Court will decide placement for children under the age of 18. Through a Guardianship proceeding, the Court will evaluate many factors to determine Guardianship. While you should create a Will and nominate a Guardian, please be aware that the Court will consider your nomination but there is not guarantee the person(s) you name will be selected. 

The goal of the Court is to make the best decision for the child and it’s important they know your wishes. 

As noted above, the Court makes a Guardianship decision when no biological or adopted parents are in place. For parents who are separated or divorced, your ex-partner will retain custody of your child(ren) should you pass away. These are default rights, unless parental rights have been terminated. 

Considerations when nominating a Guardian

As you determine whom may assume guardianship of your minor child(ren), consider the following:

  • Location – if you want your child to stay where you currently reside and possibly attend school, perhaps consider a local Guardian or one who is willing to relocate. 
  • Parenting skills – is the person you nominate a parent, or does that person have professional or personal experience with raising children, such as a teacher, etc.? Does this matter to you?
  • Religious beliefs and philosophies – do they share your faith, and if not, is this alright? Public versus private school? The Guardian will have ultimate control over decisions that impact these areas of your child’s life, so be sure that you know how they may honor your beliefs and philosophies. 
  • Co-guardians – don’t name a person and their spouse as Co-guardians, unless you want both to be equally considered as Guardians. This could be problematic or confusing should a couple get divorced or one of them deceased at the time that the Court needs to consider who will be Guardian of your child. Be clear in your Will. 
  • Successor – life happens and things change; be sure to name a backup Guardian should your first choice be unable or unwilling to accept responsibility of your child(ren).

Having to choose a Guardian is hard. To discuss this and other important choices, like choosing an Executor and choosing a Trustee, please speak with an Estate attorney. 

Attorney R. Nicholas Nanovic is an Accredited Estate Planner®, serving as chair of Gross McGinley’s Estates and Tax Law teams.

The content found in this resource is for informational reference use only and is not considered legal advice. Laws at all levels of government change frequently and the information found here may be or become outdated. It is recommended to consult your attorney for the most up-to-date information regarding current laws and legal matters.