Appointing a Legal Guardian

Learn why you should appoint a legal guardian for your children, the rights and responsibilities of the legal guardian, and the steps that you need to take to appoint someone.

Ready to start your estate plan?

Trustpilot star rating bar
A man is wearing headphones and sipping coffee while reading the basics of appointing a legal guardian.

Contents

Updated on: July 9, 2025
Read time: 7 min

A legal guardian is someone who assumes the role of the parent for a child, providing necessities such as food, shelter, and clothing. A guardian also makes day-to-day and major decisions for the child.

Major decisions include where and how to get medical care, what type of education the child shall receive, and how to raise the child, including overall care, vacations, and religious upbringing.

A child wearing braids, a headband, and a striped shirt holds hands with an adult on both sides of her.

Appointing a legal guardian occurs in one of the following ways:

  • Naming your child's guardian in your will
  • Filing a guardianship proceeding in court
  • In some states, parents can sign a form in front of witnesses, appointing a guardian

When you name a guardian for your child in your will, the guardian will raise your child after you've passed.

The court doesn't always have to accept the guardian you've appointed. Consequently, you may want to name a backup guardian in the event the court disapproves of the named guardian.

In many states, your child must also agree with your choice of a guardian if the child is more than 14 years old. In some states, guardians are called conservators.

A court may appoint a legal guardian during your lifetime if, for some reason, you can't raise your child. This could happen if:

  • You can't raise the child now, and someone else should raise the child for you, whether you agree to this or not
  • A court terminated your parental rights, and the father is unavailable
  • You'll be away for a while or are in the army
  • You're seriously ill, incapacitated, or unfit to raise the child due to addiction, child neglect or abuse, or domestic violence in the household
  • You're incarcerated, and there's no other parent to raise the child

Sometimes a child will have two guardians, known as a guardian of the person, and a guardian of the estate.

  • A guardian of the person is the guardian who is primarily responsible for raising the child.
  • A guardian of the estate is a trusted person who takes care of the child's finances, especially if the guardian of the person isn't good with finances or if the child has a large estate.

If the guardian of the person can take care of the child's finances, the child may need only one guardian.

The ideal guardian is trustworthy and is someone who has the temperament and ability to raise your child. In most states, guardians are U.S. citizens and are at least 18 years old, but in some states that age is 21.

The court may approve an adult sibling as a guardian. Usually guardians can't have convictions or have committed child abuse, neglect, assault, abandonment, or other serious crime or family offense. It's important that a guardian's lifestyle is one that works well for the child.

Guardians owe a "fiduciary duty" to the child, which means that guardians owe a duty of trust and must act in a manner that furthers the child's best interests. Both guardians of the person and of the estate are trusted people who will do the right thing for the child.

They cannot raid the child's money or assets. They usually need court permission if they want to move out of their area. A guardian of the person is held to a high standard of raising the child as if the guardian were the child's parent.

Legal guardians can invest for the child, and they can hire appropriate people to protect the child's assets. They can make decisions for the child, enroll the child in activities such as sports and music, and travel with the child. Depending on what the court order states, the guardian may travel out of state or out of the country with the child.

If a will names a legal guardian, the probate court appoints the guardian pursuant to the will. If a child needs a legal guardian during a parent's lifetime, the parent or any other interested person must file a petition to have the court appoint a guardian. If you're not the parent, you can file a petition requesting that the court appoint you as the child's guardian.

If you're filing the guardianship papers yourself, check with your state's family, probate, or surrogate court's website for the appropriate guardianship papers. Take the following steps:

  1. Fill out the petition. If you're not the parent, try to get written consent from the parents for guardianship. Fill out whatever papers the court requires.
  2. File the petition with the proper court. Make sure you make copies of the petition and accompanying papers and file the original. Pay the filing fee.
  3. Serve interested people with the papers. If you're the petitioner, you cannot personally serve the papers but will need a sheriff or process server. Interested people include both parents, any foster parents, and social services, the person with whom the child lives, and the child if they're more than 14 years old.
  4. Prepare for court. Gather evidence, such as the child's birth certificate and any written permission.
  5. Allow home inspections. Also, expect the child and the guardian to meet with doctors, attorneys, and therapists. The guardian may have to agree to background checks.
  6. Appear at the hearing with the child. The court will notify you of the hearing date, but if you haven't heard from the court after service of the papers, contact the court to find out if you have a date.
  7. Wait for the court decision. Sometimes the court will decide from the bench, and other times it will render a written decision and order, or letters of guardianship, after the hearing.

Court-appointed guardianship is not a simple process, so hiring a family attorney is a good idea, especially if someone is contesting it or filing their own guardianship petition.

What is a legal guardian, and what do they actually do?

A legal guardian is someone who steps in as a child’s parent when their real parents can't take care of them anymore. The legal guardian becomes responsible for providing everything a child needs to live and grow up safely, including making sure they have food, clothes, and a place to live. They also make important decisions about the child's life, like what medical care they get, what school they attend, and even things like their religious upbringing.

How can parents choose who will be their child's guardian?

The first and most common way is to name a guardian in your will (the legal document that says what happens to your property when you die). When you do this, you're telling the court who you want to raise your child if something happens to you. It's smart to also pick a backup guardian in case your first choice can't serve. The second way is through a court process where someone asks a judge to appoint them as guardian. This usually happens when parents don't write a will or when there's an emergency situation.

When would a court appoint a guardian while the parents are still alive?

Courts may appoint guardians for children if the parents can't properly take care of them, which can happen in several ways. Sometimes a parent becomes seriously ill or injured and can't care for their child anymore. The court might also step in if there's evidence of abuse, neglect, or domestic violence in the home. In other cases, the government (such as Child Protective Services) might have already taken away the parents' legal rights to make decisions for their child, and there's no other parent available to step in. 

Can the court reject the guardian that parents chose in their will?

A judge might reject a chosen guardian for several reasons. Maybe the person has a criminal record, doesn't have a stable home or income, lives too far away, or has health problems that would make caring for a child difficult. The court might also say no if the person simply doesn't want the responsibility anymore or if the child strongly objects to that guardian, provided they’re mature enough to articulate and understand their decision. 

Do you need a lawyer to get guardianship, and how complicated is the process?

While you're not legally required to have a lawyer for guardianship cases, the process is complicated enough that most people should seriously consider getting legal help. The guardianship process involves a lot of legal paperwork, strict deadlines, and specific rules about how things must be done. A family law attorney who understands guardianship cases can help you avoid costly mistakes and make sure everything is done properly. 

Ready to start your estate plan?Start My Estate Plan
Twitter logoFacebook logoLinkedIn logoReddit logo

This article is for informational purposes. This content is not legal advice, it is the expression of the author and has not been evaluated by LegalZoom for accuracy or changes in the law.

66 days ago
Trustpilot star rating bar

legal zoom is the way to go

The representative was very knowledgeable about how long it takes to transfer a deed from one person to the next he explained everything and he was very pleasant when speaking to him

Ross
66 days ago
Trustpilot star rating bar

I find that LegalZoom has all the…

I find that LegalZoom has all the answers if you're starting a business an LLC and incorporation or you're doing a trust or a Will. These are the people you want to trust don't go to an expensive attorney you're just throwing your money away. Legal soon gets five stars!

Sean Christopher
66 days ago
Trustpilot star rating bar

I spoke to the representative today about a Trust...

I spoke to the representative today regarding a question about an existing Living Trust. She was very helpful - told me exactly what I needed to know and how to accomplish it. As a representative in the Financial field I guide clients all the time on where to get documents done right - and its always LegalZoom - easy and effecient!

Gareth
75 days ago
Trustpilot star rating bar

We could not be more Pleased with the…

We could not be more Pleased with the help and service we had during the up dating of our Living Will and Advanced Directive

Richard Poulton
78 days ago
Trustpilot star rating bar

Legal Assistance for the rest of us

Legal Zoom has made it easy and affordable for us to create an LLC, a Will, and a Trust for our families.

K Chapman
81 days ago
Trustpilot star rating bar

pleasant and willing representatives…

pleasant and willing representatives ready to help me navigate through your system and supply attorney contact information for my legal questions for my last will & testament

Mark Impink
81 days ago
Trustpilot star rating bar

LegalZoom .com has exceptional, real, staff to help. I met one!

I purchased multiple accounts to update both our Living Wills and Estate Plans. After utilizing LegalZoom.com’s user-friendly and intuitive platform for these legal documents, I found it necessary to call for clarification on some information within our account. I spoke with Sandra Balderas, who expertly addressed the mistakes I had inadvertently made. Her professionalism and friendliness greatly enhanced the experience. I realized that LegalZoom is not only a straightforward website to navigate for such complex matters, but it also boasts exceptional employees. Thank you, LegalZoom.com, and especially Sandra Balderas, for guiding me through the process. I’m thrilled to have discovered LegalZoom.com.

Max -Phoenix, Arizona
81 days ago
Trustpilot star rating bar

Sarah was most helpful today regarding updating my estate plan

Sarah was most helpful today regarding updating my LZ docs created 3 years ago. She made sure I had all the information I needed, not just what I asked for. Thank you Sarah!

Diane Floyd
87 days ago
Trustpilot star rating bar

Quick and easy experience creating a…

Quick and easy experience creating a will package.

Kristin Steel
92 days ago
Trustpilot star rating bar

Used them past 10 years

Used them past 10 years. I needed another will and power of attorney.

MERLYN C
92 days ago
Trustpilot star rating bar

Tammy was wonderful and very…

Tammy was wonderful and very knowledgeable. It's because of her that I am going to open a living trust with legal zoom. She was great. Thank You

Erin
100 days ago
Trustpilot star rating bar

Pleasant Experience

Patience and weel given explanation about the process of how a "Living Trust" & "Deed" works after transitioning and guidance on how to contact an attorney whenever I need legal advice.

Sharron Martin
102 days ago
Trustpilot star rating bar

It was a breeze to deal with Legalzoom…

It was a breeze to deal with Legalzoom and finished my estate plan within an hour!! Thanks again

BT
106 days ago
Trustpilot star rating bar

Great team…

Mark and Legal Zoom make estate planning affordable and attainable.

Christopher Maginnis
138 days ago
Trustpilot star rating bar

Living Will & Forming my LLC

I have used Lega Zoom for several items, including my living will and items to form my LLC for my business. It's fast, easy, and thorough. The customer service is fantastic! I am working with David on a few items for my will,l and he has been a delight. He follows up when he says he will and is incredibly helpful. I highly recommend this company.

Kristen J
150 days ago
Trustpilot star rating bar

Nadia made it very easy for me to make…

Nadia made it very easy for me to make a decision to sign up and create my estate planning documents with legalsoom. She was very professional and knowledgeable about the package that I chose. She also offered her direct contact for any future questions I might have.

Melita D'Anna
159 days ago
Trustpilot star rating bar

Kylie helped me to review my history of…

Kylie helped me to review my history of trying to complete my estate plan and contacting a legal advisor that comes with my account. She was patient, knowledgable, and helpful.

Paula
163 days ago
Trustpilot star rating bar

I have worked with Mark Champ on… Last Will & Testament, Living Will, Quit Claim Deed

I have worked with Mark Champ on several documents I needed and every time he has provided me with every thing I needed and with so much graciousness and knowledge. It has always been such a pleasure working with Mark!!!!!!!!!!!!!

Cathy Donaldson
198 days ago
Trustpilot star rating bar

Most Dedicated Representative!

Patti Green was the most informative person in guiding me through the process of completing my estate plan . She was always there for me to answer my questions and give excellent advice . Also , she was very polite and considerate ! Legal Zoom is so fortunate to have Patti on their team . Thank you , Patti for all of your assistance and kindness !

Priscilla Page
276 days ago
Trustpilot star rating bar

Patti Green is GREAT!

Ms. Patti Green walked me through the Estate Planning process. She was very professional, patient and kind. Planning for when you are no longer here is very intricate and difficult. Working with Ms. Green helped give the assurance that I am doing the right thing for myself and loved ones.

TRINESSA
Rated4.6out of 5 based on23,801+ reviewson

Showing our favorite reviews