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Guardianship and Your Children

Choosing a guardian for your children can be a very difficult decision to make, but it is a decision well worth making. If you have not selected a guardian to care for your children in the event of your death, the court will make the decision for you. Most parents would rather have control over this very important — and very personal — decision.

Some of the considerations you should make before choosing a guardian include his or her:

  • Financial situation - Will he or she be able to afford to provide for your children?
  • Lifestyle - Do you want a married couple or does it matter if the person is single, dating, widowed?
  • Parenting style - Does the person share the same parenting style as you?
  • Values - Does the person share the same values and morals as you?
  • Religion - Does it matter to you if the person has the same, different or no religion?
  • Housing - Does the person have the physical room to take on your child or children?
  • Children - Does the person have children of his or her own to care for, and if not, is there a possibility of children in the future?
  • Stability - Will naming this person guardian mean your children will have to move out of state, move to a different school or otherwise uproot their lives?

Once you decide whom you would like to serve as guardian, discuss it with them to make sure they are willing. While most people will agree to act as guardian, some may not be comfortable with it. It is also important to have an alternate choice in case your first choice is unable, unwilling or found unfit by the court to serve as your children's caretaker.

It is also important to keep in mind that if the child's other biological parent is still alive at the time of your death, he or she will be named as guardian regardless of your choice. The only time the surviving parent will not be able to serve as guardian is if he or she is proven to be unfit, has legally abandoned the child or declines the appointment. Proving the surviving parent is unfit can be particularly difficult unless there is a well-documented history of drug, alcohol or child abuse, or mental illness.

Non-biological parents do not have rights to guardianship if a biological parent is still living. This can create a difficult situation when parents are divorced and one parent may not want the other to be the guardian. The only time non-biological parents have rights to guardianship is if they have adopted the child. Adoptive parents have the same guardianship rights as biological parents.

You can name a guardian either through will or deed, depending on your state's laws. Some states require the will to be admitted to probate before the guardian designation can take effect. Some states require the court approve the appointment of guardian. The court is not required to uphold the deceased parent's choice of guardian. If the court finds the guardian unfit or unable to provide for the child, the court can name a different person to act as guardian. However, so long as the person named is qualified and it will not be harmful to the child, the court will uphold the parent's designation.

Deciding whom to name as guardian of your children is an important step to take to provide for their well-being in case there comes a time when you cannot.

Preparing to Meet with Your Estate Planning Attorney

To read and print out a copy of the checklist, please follow the link below.

Preparing to Meet with Your Estate Planning Attorney

You can download a free copy of Adobe Acrobat Reader here.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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