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The Guardianship Fact Sheet

Selecting Your Child's Guardian - Some Ideas.

Selecting Your Child's Guardian is one of the most important reasons for having a Will.

Not only is it an emotional process, but both you and your spouse must agree on the fate of your children. The Prompts will consist important information and provocative questions for you to follow so that the decisions you make are sound.

Guardian Defined:

An adult who has been given the legal rights by a court to control and care for a minor or her property. An adult who has legal authority to make personal decisions for the child, including responsibility for his/her physical, medical and educational needs, is called a "guardian of the person." Sometimes just one person will be named to take care of both these tasks. An individual appointed by a court to look after an incapacitated adult may also be known as a guardian. A person appointed by a Will or Codicil to care for someone is called a "Testamentary Guardian".

Choosing a Guardian for Your Children.

If you have young children, you should nominate a guardian in your will.

If your children are young, you have probably thought about who would raise them if, for some reason, you and the other parent could not. It's not an easy thing to consider.

All you need to do is use your Will or a Codicil to name the person or people you want to be the guardian(s) of your children, if ever needed. Then, if a court ever needs to step in and appoint a guardian, the judge will usually appoint the person you nominated in your will unless, for some reason, it is not in the best interests of your children.

If you don't name a guardian in your will, anyone who is interested can ask for the position. The judge then must decide, without the benefit of your opinion, who will do the best job of raising your children.

Here are some factors you might want to consider when choosing a guardian:

Is the prospective guardian old enough? (He or she must be an adult -- 18 years old in most states.)

Does your choice have a genuine concern for your children's welfare?

Is your choice physically able to handle the job?

Does he or she have the time?

Does he or she have kids of an age close to that of your children?

Can you provide enough assets to raise the children? If not, can your prospective guardian afford to bring them up?

Does the guardian share your moral beliefs?

Would your children have to move?

If you're having a hard time choosing someone, take some time to talk with the people you're considering. One or more of your candidates may not be willing or able to accept the responsibility, or their feelings about acting as guardian may help you decide.

If You and the Other Parent Can't Agree.

When you and your child's other parent make your wills, you should name the same person as guardian. If you don't agree on whom to name, a court fight could ensue if both of you die while the child is still a minor. Faced with conflicting wishes, a judge would have to make a choice based on the evidence of what's in the best interests of your child.

Again, talk with the people you'd each like to name. Candid discussions with your potential guardians may bring new information to light and help you reach an agreement.

Choosing Different Guardians for Different Children.

Most people want their children to stay together; if you do, name the same personal guardian for all of your children.

You can, however, name different guardians for different children. Parents may do this, for example, if their children are not close in age and have strong attachments to different adults outside of the immediate family. For instance, one child may spend a lot of time with a grandparent while another child may be close to an aunt and uncle. In a second or third marriage, a child from an earlier marriage may be close to a different adult than a child from the current marriage. In every situation, you want to choose the personal guardian you believe would be best able to care for each child.

Choosing a Different Person to Watch the Money.

Some parents name one person to be the children's guardian and a different person to look after financial matters. Often this is because the person who would be the best surrogate parent would not be the best person to handle the money. It also avoids any hint of a conflict of interest over money.

For example, you might feel that your brother-in-law would provide the most stable, loving home for your kids, but not have much faith in his abilities as a financial manager. Perhaps you have a close friend who cares about your kids and would be better at dealing with the economic aspects of bringing them up. Provided that your brother-in-law and your friend agree, you can name one as guardian and the other as custodian or trustee to manage your children's inheritance. Executors often do this job as they are usually appointed as both "executor and trustee".

Making Your Wishes Known.

Most people have strong feelings about how they want their children to be raised. Your concerns may cover anything from religious teachings to what college you'd like a particular child to attend.

One option is to write a letter to the personal guardian, outlining thoughts and feelings about how the children should be raised. Try not to put in too much detail, though; it could cause your nominee much guilt and frustration later if unexpected circumstances thwart his or her attempts to carry out your plans to the letter.

The best guarantee of an upbringing you would approve of is simply to choose someone who knows you and your children well, and whom you trust to navigate life's complexities on your children's behalf.

If You Don't Want the Other Parent to Raise Your Child.

If one of a child's parents dies, the other parent usually takes responsibility for raising the child. This, of course, is what most people want.

If you are separated or divorced, however, you may feel strongly that the child's other parent shouldn't have custody if something should happen to you. But a judge will grant custody to someone else only if the surviving parent:

has legally abandoned the child by not providing for or visiting the child for an extended period, or is clearly unfit as a parent.

In most cases, it is difficult to prove that a parent is unfit, absent serious problems such as chronic drug or alcohol abuse, mental illness, or a history of child abuse.

If you honestly believe the other parent is incapable of caring for your children properly, or simply won't assume the responsibility, you should write a letter explaining why, and attach it to your will. The judge may take it into account.

Judges are always required to act in the child's best interests.

In choosing a guardian, a judge commonly considers a number of factors; you may want to address them if you write a letter explaining your choice for personal guardian. Here are the big ones:

the child's preference, to the extent it can be ascertained

who will provide the greatest stability and continuity of care

who will best meet the child's needs

the relationships between the child and the adults being considered for guardian, and

the moral fitness and conduct of the proposed guardians.

Talk to people on your guardian list, ask questions of them and explain how you feel. You your choice of a guardian for your children should both agree about the important issues of what is best for your child or children. Remember... It's their future you're deciding now. Not yours. Make your decisions based on their well being and your peace of mind.

How to nominate a Guardian in a Will

The clause nominating a Guardian in a Will usually looks something like this:


I appoint [full name of nominee] a [occupation] of [place of residence] as Guardian of my child [ full name of child]


Stay as long as you like. Copy what you need and all we ask is that you tell a friend about us. A Codicil template for nominating a guardian can be viewed and copied here.

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