The thought of relinquishing your child to the care of someone else — a stranger — is unbearable, isn’t it? You may tell yourself you’d never let this happen. After all, you’ll always be there for your child.
Jump ahead to these sections:
- Step 1: Pick a Guardian
- Step 2: Designate Your Child’s Guardian
- Step 3: Update Your Choice of Guardian as Necessary
Unfortunately, as awful as it is to accept, the reality is that the care and custody of your child are at risk every single day. If something unfortunate happened to you (if you are a single parent) or to you and your spouse that prevents you from raising your child, someone would have to take custody of your child.
What happens when you haven't appointed a legal guardian? Under these circumstances, your preference for who should raise and make decisions for your child would never be heard.
Follow these three steps to appoint a legal guardian for your child so that if something ever happens to you, you know your child will be cared for by someone you know and trust.
Post-planning tip: If you are the executor for a deceased loved one, handling their unfinished business can be overwhelming and disheartening without a way to organize your process. We have a post-loss checklist that will help you ensure that your loved one's family, estate, and other affairs are taken care of.
Step 1: Pick a Guardian
If you are not able to raise your child because you are deceased or incapacitated, the court will appoint a legal guardian to take legal responsibility for your child. Most parents want this to be a relative or friend who they know and trust.
The best way for you to express your preference is to include your choice of a legal guardian for your child in your last will and testament. The court is not obligated to honor your stated preference for a guardian, but you should take the steps necessary to express your wishes to the court. You can easily create a guardian plan in your will online in minutes with Trust & Will.
The court will apply the “best interest of the child” standard as it decides on your child’s legal guardian. This means that it will appoint the person who the court believes will provide for the child’s mental, physical, emotional, social, and psychological best interest.
You have a legal right to decide what is in your child’s best interest as a fit parent. In fact, the law provides that because you are the child’s parent, whatever you choose for your child is presumed to be what is in the child’s best interest, even if other third parties — including your child — think differently.
Of course, if someone shows that what you decide for your child is harmful, the court will step in and prevent that decision from happening. The court will also consider the child’s preference if the child is old enough to express mature reasoning.
Decide which factors are important to you. Consider things like:
- What values or virtues are important to you and that you believe your child should experience?
- What life lessons would you want your child to learn if you were able to continue raising him or her?
- How do you want your child to feel when being raised?
- What does your child need most?
Every parent’s answers will be different, of course. Remember that you have a legal right to decide who you want your child’s guardian to be.
You should not feel compelled to choose the person who is most well-off financially or the friend who will provide your child with the most comfortable lifestyle. You also don’t need to feel compelled to choose a relative. Only choose those guardians if financial security and comfort are what you want for your child.
You may want to give some thought to these other considerations:
- Who do you most relate to as a current parent (who is also raising his or her own kids)?
- Does the person you are considering have the same religious beliefs as you?
- Does this person discipline similarly to you?
- Does this person exercise good judgment?
- Is this person able to physically engage with your child?
- Do you approve of this person’s children as your child’s peers?
Remember, you’re choosing a legal guardian, not just a playmate or a parental figure to give advice. Legal guardians have legal responsibilities. They must not only raise your child in a healthy environment, but they also must exercise fiduciary responsibility with the child’s financial needs as well.
You want someone who can satisfy both roles for your child. If you cannot find someone capable of performing both roles, you may have to consider choosing two guardians to provide for the child’s financial and personal needs.
Let’s say you choose a friend to serve as your child’s guardian but other family members also want to take custody of your child. This will bear on the court’s decision — the court will always prefer to keep your child with his or her family, if possible.
Ultimately, the court will choose the person who serves the child’s best interest. Therefore, it may help for you to explain in your will why you chose your friend as the child’s guardian and why you think your friend serves the child’s best interest more than a family member.
Some other considerations to make:
- Whether your child has been with the guardian before and enjoyed his or her time with that person.
- Do your family members approve of your choice for a guardian? You may need to consider that your family will still want to visit your child, and the guardian will have to work with your family to arrange visits. If your family and your chosen guardian do not get along, the court may look less favorably on your choice as serving the child’s best interest.
- Is your chosen guardian likely to relocate with the child, away from your family or the child’s school?
- Have you spoken with the guardian you’ve considered? Is he or she willing and able to provide for the child’s needs? You should never designate a legal guardian in your will without speaking to that person about your decision.
Step 2: Designate Your Child’s Guardian
Once you’ve chosen the person you want to serve as your child’s guardian, you must indicate your preference so the court will know your wishes. This is most easily done in your last will and testament. If you haven't already made a will, consider taking the first step and comparing the options below.
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If you have already executed a will, you or your attorney will need to execute a codicil to your will or execute a new will. This does not have to be a complicated provision with any particular legal language.
You’re simply stating that if you have died and there is no other legal caretaker for the child (the child’s other parent), you consent to your designated person having legal custody of your child as a legal guardian. There are ample legal forms online that offer appropriate provisions.
You may plan to provide financial assistance to the guardian, so another option is to indicate your guardian appointment in your will and also create a pour-over trust, which you will fund by bequeathing money in your will and designating the trust as beneficiary.
Within the terms of the trust, you will designate the guardian as the trustee of the trust, and you can set out the terms by which the guardian may distribute the trust funds on behalf of the child. The terms of access and distribution may be issues that you discuss with the guardian when you write the trust.
When you are deceased, the executor of your last will and testament will present your will for probate and for the appointment of a guardian.
Step 3: Update Your Choice of Guardian as Necessary
You may change your legal guardian decision any time you wish. Naturally, your child’s needs and the circumstances for your chosen guardian are likely to change over time. Therefore, your preference for a legal guardian is also likely to change.
Over time, someone new in your child’s life presents as a more appropriate guardian for the circumstances you are trying to anticipate. Reassess your considerations every year, or as necessary, to determine if any changes are warranted. Include your chosen guardian and your child, if appropriate, in those discussions.
Using a free tool like FreeWill is a great way to update your guardian and your other final plans in seconds online. You don't need to visit an attorney each and every time.
Peace of Mind
Learning how to choose a guardian for your child is one thing. Writing it down in a legal document for it to become effective when necessary is another. Choosing a guardian for your child in anticipation of a tragic event in your life is an unsettling and unnatural exercise, but it is necessary.
Consider all the anticipated events for which you meticulously plan ahead for your child to keep him or her safe and provided for. It’s only reasonable that you would want to plan ahead for your child’s well-being.
It may be the last decision you ever make on behalf of your child, and certainly the most important. Give that decision the attention it deserves.