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Choosing Children’s Guardians

Your children will not automatically be cared for by your close relative. A common misconception is that during an emergency, your children may be cared for by your family or close friends. The truth is your choice of your children’s guardian needs to be legally documented or the court may appoint someone who would not be your choice. Establishing legal guardianship for your children serves more than one purpose. Yes, it would protect your minor child(ren) if all legal parents die. However, it could also protect your child(ren) if all legal parents become incapacitated, physically or mentally ill.

According to a national survey, 80% of parents of minor children have not established legal guardianship. A scary fact. Many of my friends—highly educated professionals—fall into this camp. Why? Anecdotally:

  1. Have false comfort knowing that rarely do both parents travel (think: distance travel) without the children
  2. Incorrectly assume their informal agreement with grandparents or siblings will suffice
  3. Want to avoid argument with spouse over who the guardian(s) should be

The fact is most family tragedies occur in a car, close to home. And, if you fear family arguments and resentments while you are coherent, imagine how they would play out if you were seriously injured or deceased. Though a court still needs to approve your guardian choice(s), they usually do. In absence of legally recording your choices, the court may hear claims from family, close friends or appoint someone else who seems more suitable. In other words, you child(ren) could wind up anywhere.

You can choose different guardians for different purposes. Legally, there are two types of guardians for minor children. In layman’s terms:

  1. Guardian of the person: this is the substitute parent.
  2. Guardian of the estate: this is the person who manages the minor’s assets.

Either or both of these can be established as short-term or long-term arrangements. For example, short-term guardianship while the parent is in the hospital. Or if all legal parents are deceased but the permanent guardians live far away, the child may need a local short-term guardian.

It is also important to review your choice of guardians regularly. Your chosen guardian’s situation may change: have more children, divorce, change lifestyle or residential location. Further, your relationship to your choice may change.

Quiz: A useful worksheet for choosing guardians.