Appointing a Legal Guardian

Appointing a Legal Guardian

by Ann MacDonald, November 2019

As important as it is to think about your child's financial future, appointing a guardian is even more critical when you sit down to create your estate plan. Find out how to protect your children.

No one of us likes to consider our mortality, but being a parent naturally makes you think about the future. When you have kids, their security is your prime concern. And as important as it is to consider finances for your child's future, designating a guardian---in the event that you should you ever become incapacitated---is even more critical.

What is a guardian?

A guardian is a person who has legal responsibility for a child in lieu of the parents. Guardians are appointed for children when the parents are deceased or if they abandon children or are unable to care for them.

Picking a guardian

There are many things to consider when picking a guardian. This is the person who will be parenting your children. So, a guardian will make decisions about your children's health, schooling and moral training. Some things to consider when selecting a guardian include:

  • Does this person love my children?
  • Is this person responsible and up to the challenge of raising my children?
  • Is the person a legal adult? A minor cannot be a legal guardian for another minor.
  • Where does this person live? Would my children be uprooted and moved away from their friends and family members if they went to live with this guardian?
  • What is the person's home situation? For example, does he or she have a house or a studio apartment? Is the potential guardian in a stable relationship?
  • Will your children still have easy access to their other relatives?
  • What are the person's religious and moral beliefs?
  • Does the person have any medical conditions that would preclude being an effective guardian?
  • If you cannot leave enough financial assets for your children's care, does the potential guardian afford to care for your child?

Once you select someone to name as a guardian, it is important to discuss it with him or her. While most people are flattered, some are unwilling to accept the responsibility or have previously unknown reasons for which they might be unable to take on the role. It is also wise to consider appointing an alternate guardian.

Naming a guardian

Once you have selected someone to appoint as a guardian, the hard part is done. Now all you need to do is to name the person in your will. The states legislate how guardians are chosen, and the laws are similar throughout the United States. Whether you use your personal attorney or use a DIY template to create your will, this is a simple thing to do. Once you have named a guardian for your children in your will, the court will follow your request so long as it is feasible.

When there is no guardian...

What happens if you do not appoint a guardian? If you should die without a will and fail to designate a guardian, the courts will decide who takes care for your minor children. The decision may be less than ideal. The court system does not know your children and can't have an understanding of your wishes for them unless you leave a legally binding guardianship document.

If you have minor children, naming a guardian for them is one of the most important considerations in your will. More than likely a will is perhaps the most important legal document the average person will ever sign. Without one, the courts—and not you—decide what happens to your assets. They can even decide what happens to your children.

If you want to name a legal guardian, LegalZoom can help you do that by getting a last will and testament, or a living trust. To start the process, choose which one works best for you and fill out questions in our online questionnaire. We check your answers for completeness and consistency, assemble your documents and send them to you with instructions.

Ready to Begin?


Have Questions?