If you’re a parent, the possibility of not being there for your child isn’t a pleasant one – but it’s one you can’t afford to ignore. Yes, the idea that someone else might have to step in to care for your child is troubling. But the idea that your child’s caregiver might be someone you don’t approve of, or even know, is even more stressful. And if you haven’t chosen a guardian for your child, that’s precisely the possibility they face should the unthinkable happen to you.
Choosing a guardian for your child should you die or lose capacity is something every parent should do. No matter how healthy and safe you are, or how confident you are in your parenting abilities, you have no way of knowing what the future holds. Taking the time to sit down and choose a guardian is essential, and the sooner, the better. By doing so, you can rest easy in the knowledge that your child will receive the care they need should you no longer be there.
What Is Legal Guardianship?
A guardian is someone who has the legal authority to make decisions on behalf of someone else. That other person, typically known as a ward, doesn’t have the legal ability to make their own choices. In general, all people have the right to make their own decisions once they turn 18, unless a court appoints someone to make decisions on their behalf. They do so by holding a hearing and determining the adult to be incapable.
In most situations where parents have a child, the parents have the right to make decisions on behalf of that child until the child becomes an adult at age 18. This decision-making ability also extends to choosing or nominating a guardian should the parents no longer be able to care for the child.
Choosing & Appointing a Guardian
A guardianship is a legally granted position and collection of decision-making powers that only a court can bestow. If you’re the parent of a young child, or an adult child with disabilities, state laws typically give you the right to choose a guardian for your child as long as you do so in a legally recognized manner. Once you make your choice, the court typically approves it unless the person you select is deemed incapable of caring for your child.
A guardian’s ability to make choices on behalf of a ward is not identical to that of a parent. In general, there is more court supervision over a guardian’s role than a parent’s. A court can also limit the guardian’s decision-making powers in various ways.
- Approval. Only a court can grant guardianship powers. As a parent or guardian, you can nominate someone of your choice to become a replacement guardian should something happen to you, but it’s up to the court to make the final decision. Courts typically hold at least one hearing before choosing a guardian.
- Limitations. After a court chooses a guardian, it issues official documents called Letters of Appointment, Letters of Guardianship, or similar names, in which it states who the guardian is, what powers they have, and any limitations under which they must operate. Limitations can include, for example, the right to manage the ward’s finances only, or the right to make decisions only until an incapacitated parent becomes capable once more.
- Reporting. Courts can require guardians to submit reports or notifications. For example, a court may require the guardian to notify it of any change in address or seek permission before moving with the child out of state.
- Termination. Courts not only grant guardian powers, but they can also remove them. If the court finds the guardian is not meeting their duties, is not caring for the child appropriately, or is otherwise unfit, it can remove the guardian and name another. The reasons for removal vary but typically involve the guardian’s care not being in the best interests of the ward. Also, in some states, a ward who is old enough – typically about 14 or older – can ask the court to appoint a new guardian on their own, though the court may not have to comply with the request.
Types of Legal Guardians
State laws on guardians can differ significantly, both in their terminology and details. However, these laws generally serve the same purpose regardless of where you live.
Guardian types can vary in terms of which decision-making powers they have, how long they have those powers, how they’re appointed, and other factors. You should talk to an experienced probate, family law, or estate planning attorney in your state if you need any advice about the kinds of guardians recognized in your state. You can also take care of the whole process online through Trust & Will.
1. Guardian of the Person
Also known as a plenary guardian, a guardian of the person is responsible for the ward’s day-to-day care and decision-making. Guardians of the person have mostly the same rights as parents when it comes to making decisions on behalf of the child, with some limitations.
In many situations in which parents choose a guardian for their child, their primary concern is choosing an appropriate guardian of the person, as this person becomes responsible for caring for and raising the child in largely the same way a parent would.
A guardian of the person’s responsibilities typically include:
- Child Rearing. A minor’s guardian has the right to make child-rearing decisions, such as those involving education, diet, entertainment and activities, spiritual teaching, housing, and general welfare.
- Health Care. A guardian can make medical decisions on behalf of the child and discuss medical issues with the child’s health care providers. They can also add the minor as a dependent under their health insurance policy.
- Legal Representation. A child’s guardian has the same rights as a parent to serve as the child’s legal representative. For example, a 17-year-old cannot enlist in the armed forces unless their legal representative – a parent or guardian – grants permission. Similarly, if the ward gets married without the guardian’s or a court’s permission, the guardian can ask a court to annul the marriage and declare it invalid.
- Delegation of Guardian Powers. Like parents, a guardian can delegate their decision-making abilities to others for short periods. If, for example, the guardian has to travel and can’t take the ward, they can pass guardianship powers to someone else temporarily. They can also nominate a new guardian to take over child-rearing responsibilities in the same way a parent can.
2. Guardian of the Estate
Sometimes known as a conservator, a guardian of the estate is responsible for managing the ward’s financial interests or assets. For example, if you die and leave your child an inheritance, they can’t legally control that money until they become an adult. In this situation, the guardian of the estate would step in and take control of the assets, managing them on the child’s behalf until the child is an adult.
The guardian of the estate does not have the right to make the kind of child-rearing decisions the guardian of the person makes, but the two types of guardian responsibilities are not always separate. Courts often appoint the same person to serve as both the guardian of the estate and of the person. Guardians of the estate are more common in situations where, for example, a ward receives a large inheritance from a deceased parent following their unexpected death.
Similarly, a child’s parent can also become a guardian of the estate in situations where their child receives an inheritance from someone else. For example, if your child receives an inheritance from your parents – the child’s grandparents – the child can’t control that inheritance until adulthood. So a court might appoint you as the guardian of the estate to manage the inheritance until that time.
3. General Guardian
A general guardian is a person who has both the powers of the guardian of the estate and the guardian of the person. General guardians are the best choice when you don’t anticipate your child’s financial needs to be significant or you’re comfortable choosing a single person to manage both the financial and personal aspects of raising your child.
4. Emergency & Temporary Guardians
In some situations, a guardian can take over parenting duties for a limited time or under limited or exceptional circumstances. When, for example, a child’s parents simultaneously die unexpectedly, leaving the child without a caregiver, a court typically appoints an emergency guardian. Emergency and temporary guardianships can mean the same thing in some states, while in others, they are distinctly different.
Usually, their responsibilities break down like this:
- Emergency Guardian. In situations where parents become injured or unable to care for their child, a court may appoint an emergency guardian. All emergency guardianships are temporary appointments and typically last until a ward’s parents can resume their duties, or until they die and the court names a permanent guardian. In situations where there is no anticipated recovery or the parents have died, the emergency guardian retains parenting authority until the court appoints a permanent guardian.
- Temporary Guardianship. A temporary guardianship gives parenting rights to someone other than a child’s parent for a limited length of time, typically less than a year. In some situations, a parent can pass temporary guardianship rights to someone else on their own. In others, a court can appoint a temporary guardian if it finds that the parents are currently incapable of providing proper care for the child, but it does not believe a transfer of permanent guardianship is necessary. For example, if a single parent suffering from an addiction decides to get treatment at an in-patient care facility, the parent can ask a court to appoint a temporary guardian to protect the child’s needs until the parent recovers.
5. Standby Guardian
Some states allow parents to name standby guardians for their children. A standby guardian is someone who has the right to take over parenting responsibilities if the parent becomes incapacitated. The standby guardian also retains the right to make choices for the child after the parent’s death, but only until a court names a permanent guardian.
When a parent appoints a standby guardian, they don’t surrender decision-making rights to the guardian but retain them for as long as they are able. For example, if you’re diagnosed with a serious illness, you might name a standby guardian so there’s someone who can care for your child while you undergo medical treatment. Once that treatment is complete and you’ve recovered, you can resume parenting responsibilities immediately. Further, as long as you remain mentally capable, you can modify or terminate the standby guardian’s powers whenever you like.
State laws on standby guardians differ significantly. In some states, for example, you can only appoint a standby guardian if you’ve been diagnosed with a chronic or terminal illness. Some require that you file a petition – a request with a court – and attend a hearing before the guardianship can take effect. In others, you can nominate a standby guardian by naming your choice in writing and signing the document in the presence of two witnesses. Then, if circumstances arise that require the guardian to take over parenting responsibilities, the guardian can file a petition and ask the court to approve the appointment.
In at least one state, Tennessee, parents can appoint a standby guardian by crafting a legally valid power of attorney. Powers of attorney do not need court approval.
6. Guardian ad Litem
A guardian ad litem (GAL) is different from all other forms of guardianship in several key ways. A GAL is a court-appointed officer whose sole role is to advocate on behalf of a child’s best interests when that child is involved in a case before the court. (“Ad litem” is a Latin phrase meaning “for the suit.”) A GAL’s appointment is temporary and only lasts as long as the court case does. Their primary purposes are to serve as a neutral, objective third party and to advocate for the child’s best interests through the matter before the court.
A GAL typically has broad authority to investigate the child, their parents, and the environment in which the child is raised. They can, for example, visit a child’s home to observe how the child interacts with their parents or others and write a report of their findings for the court. They can meet with the child’s educators, family members, law enforcement officials, health care workers, and anyone else who might aid in their investigation. But, apart from their investigating and reporting authority, a GAL has no authority to make parenting decisions on behalf of the child.
In some cases, such as divorces in which the parents are contesting custody or cases involving suspected child abuse, the court usually appoints a GAL automatically. In others, parents or other parties involved in a case involving a minor child can usually ask the court to appoint a GAL if it doesn’t automatically do so; however, the parent or guardian involved in a case cannot choose which GAL the court appoints. In most cases, the GAL is a trained volunteer, social worker, or attorney approved by the court and appointed on an as-needed basis.
7. Involuntary Guardians
Involuntary guardians are uncommon in situations where a parent dies or loses capacity. But, if a court finds that a parent has lost at least some capacity and needs someone else to make choices on their behalf, it can appoint an involuntary guardian without the parent’s consent.
Involuntary guardians are responsible for making choices on behalf of an adult that a court has found to be legally incapable of making choices but who does not wish to transfer decision-making rights. Involuntary guardianships are more common in situations where an adult develops a medical condition, such as Alzheimer’s dementia, that diminishes their ability to make informed decisions.
Choosing a Guardian for Your Child: Factors to Consider
There is a range of factors you need to consider when you when deciding on a guardian for your child. A simple way to do it is to make a list or spreadsheet with the requirements or desirable qualities you want your guardian to have on one axis and a list of candidates on the other. This method is especially useful if you have multiple candidates in mind and are having difficulty deciding on one.
As for the factors themselves, it’s up to you to determine what is most important to you, your child, and how you want your child cared for and raised in your absence. There’s no single list of factors that apply to everyone, but there are some common ones you should consider.
1. Legal Requirements
Most states impose some basic requirements for guardians. For example, guardians must typically be adults, and many states require them to be at least 21 years old. It’s also common for states to not permit convicted felons to become guardians. Check with an attorney about any requirements that may apply in your state. If you end up choosing someone who isn’t able to meet the basic legal requirements, a court will select someone else on its own.
2. Family & Friends
Most people who choose a guardian select a family member such as a parent, sibling, cousin, or grandparent, especially when those family members already have a close relationship with the child. Also, since you’re already close to these people, you’re familiar with their parenting style and how they interact with your child.
However, you’re not required to choose a family member as your child’s guardian. Should you die without leaving a guardian selection, a court is likely to choose a close family member to act as guardian, but you aren’t under the same obligation. You can choose whomever you like, and looking outside of the family is entirely acceptable.
In some situations, for example, your family members may not be well-suited to caring for a child or may refuse to do so. Even if they are acceptable, you may have friends or others close to you who are better suited, or better able, to provide the kind of care or home environment you want for your child.
3. Age & Health
The age of the guardian is a significant factor, especially if you expect them to raise the child for a long time. Choosing an elderly relative that already has a loving relationship with the child is an option, but it isn’t always the best one if that relative is likely to have physical or mental limitations as the years go on. Younger relatives who may not have a lot of experience raising a child can still be good choices if they exhibit the kinds of behaviors you want in an ideal guardian.
Similarly, you need to consider the general health and well-being of the potential guardian, whatever their age. Taking care of a child often requires a certain level of energy and time, so someone in poor or failing health may not be a good candidate.
You may also need to consider the age of your child and whether different guardians would be suitable at different ages. For example, if your child is currently an infant, you may want to choose a guardian who can care for infants, such as someone who doesn’t have a full-time job. If your child is a teenager, you may not need a guardian with as much free time.
4. Means & Financial Acumen
Your guardian should be able to provide a safe and healthy environment for your child and needs the financial means to be able to do so. However, this doesn’t mean you have to rely on the guardian’s ability to earn an income to pay for the child’s expenses. When you die, you can leave your child an inheritance or, even better, establish a trust through Trust & Will to ensure their financial needs are met. If you do so, the guardian can raise and care for the child while the inheritance pays for the child’s financial necessities.
Further, if you feel like the guardian would be a good parent but isn’t the best at managing finances, you may want to designate a guardian of the estate, or conservator, as well. The conservator has the sole responsibility of managing the child’s assets while leaving the day-to-day tasks of child-rearing to the guardian of the person. A trustee managing a trust serves the same general purpose.
5. Marital Status
Many people choose a married couple as their child’s guardians, and for obvious reasons. Couples typically have a greater ability to care for a child than a single person simply because they are two people instead of one. Married, or at least cohabiting, couples may be able to provide a more stable environment for a child, especially when compared with a single person who might have a string of romantic partners.
But a married couple isn’t always the ideal choice. Regardless of marital status, couples can engage in harmful or even abusive behaviors toward one another and others. Children raised in such environments can be irreparably shaped by these experiences and develop personal, physical, psychological, and social problems as a result. You should consider the strengths and qualities of any couple in a marital or romantic relationship, as well as evaluating those same qualities in single candidates.
How close the guardian lives to them is a significant factor for most parents. Your child’s life likely centers on routines, patterns, and familiar surroundings, and disrupting those by moving the child to live with a distant guardian can cause a lot of stress in an already stressful situation. As such, guardians who are physically close to you may be preferable over more distant possibilities.
However, as with other factors, the initial reluctance to uproot a child’s life shouldn’t be a deciding factor. If a potential guardian lives far away but is otherwise ideal, you shouldn’t rule that person out. The longer-term factors such as the quality of the home environment and the ability of the guardian to provide proper guidance and parenting may supersede the temporary disruption caused by a move.
7. Parenting Style, Values & Education
When it comes to ethical guidance, religious training, education, and parenting style, you’ll have to determine who best fits your preferences. Whether you care about family or cultural traditions, imparting a strong sense of morality, building a foundation of physical fitness and health, or anything else, you should consider how each candidate approaches these issues.
That said, you may not necessarily want to choose the person you feel is most similar to you. A guardian with, for example, a different religious background or belief system may nevertheless be appropriate if they’re able to care for the child’s needs.
You can’t force anyone to become a guardian, so before you make your final decision, you should talk to anyone you’re considering for the role. Make sure your conversation covers the important details of not only the would-be guardian’s legal responsibilities, but also your desires for child care, the child’s needs and personality, and anything else that you as a parent are concerned about.
Also, don’t assume that someone who already has children is more likely to be willing to care for yours. Childless candidates may be more eager to raise your child than parents who have already gone through the process.
How to Formalize Your Choice
Once you’ve chosen a guardian, your next step is to name your choice in one or more legally enforceable documents. In most situations, you can include your selection as a part of a broader estate plan, a collection of legal tools that help you control what happens if you become incapacitated or die. Estate plans and their individual components must meet specific state laws, so your best bet is to talk to an experienced estate planning attorney in your area to formalize your guardian choice.
1. Last Will & Testament
In most situations, you’ll name your chosen guardian in your last will and testament. Should you die, your will becomes a legally enforceable document as long as it meets the requirements imposed by your state. If you remain mentally capable, you can update or change your will whenever you like, including changing your guardian selection. You can also name alternative guardians who can serve in the event your original selection is no longer willing or capable when the time comes to take over child-rearing responsibilities.
2. Standby & Emergency Guardianship
If you live in a state that allows standby guardians, you must craft the appropriate documentation so that the standby guardian takes over parenting in emergencies or situations where you’re incapacitated. If you don’t live in a state with standby guardian provisions, you’ll have to talk to an attorney about how to give your chosen guardian the legal ability to care for and make decisions on behalf of your child if you get hurt or lose capacity.
3. Temporary Parental Care
You can typically give temporary parenting abilities to someone else by crafting a power of attorney (POA) for child care or a similar document. A power of attorney is a document that delegates to another person, known as an agent or attorney-in-fact, some or all of your decision-making abilities. With a power of attorney, you can, for example, give your parents the right to make medical choices for your child if you leave them with your parents while you take a vacation.
POAs are not suitable for choosing a guardian, and agents under a power of attorney don’t have the same abilities that guardians have. A POA gives you the ability to choose someone to have short-term child-caring abilities that are legally enforceable, but it can’t be used as a replacement for the documents that allow you to choose a guardian.
Finally, once you’ve made your choice in a legally enforceable manner, you should inform the people closest to you. In some situations, a close family member or loved one might assume that they’ll be able to care for your child. Should the worst happen and they find out you chose someone else, this can cause unnecessary hurt and even legal conflicts. Not only should you personally notify people of your choice, as well as making it clear to the would-be guardian that they should care for your child in case of an emergency, but you should also include a written notice in a letter of instruction.
The prospect of leaving their child in the care of someone else is not something parents like to think about, but it’s a possibility that exists nevertheless. Should something happens to you, your child still needs care and guidance. If you don’t take the time to choose a guardian and make your selection known through a legally enforceable device, the results can be confusion, hurt feelings, and even legal fights if someone has to step in to take over parenting duties. At the very least, you leave it up to a judge to choose a guardian for your child instead of making the choice yourself. If you haven’t already done so, talk to a local attorney who can guide you through the process of choosing a guardian for your child.
Have you thought about choosing a guardian? What factors go into your decision-making process?