Choosing Your Child's Legal Guardian

Choosing Your Child’s Legal Guardian
NOVA Estate Lawyers – Leesburg, VA

It’s something no parent wants to think about, but eventually must ask themselves: Who would take care of your child if you passed away before they reach adulthood?

For most people, the answer is their spouse or partner. However, if you’re a single parent – or, if you’re considering the unlikely event that both you and your child’s other parent die – this decision can be an incredibly difficult and emotional one.

In order for someone to become the legal guardian of your child after your death, you must name that person (or people) as such in your will. If circumstances require your legal guardianship clause to be invoked, a probate court will then review and, almost invariably, approve the nomination(s). Failing to name a guardian in your will means your child’s caretaker will be appointed by the court – which could ultimately mean foster care if none of your loved ones step up.

Given the significance of this choice, you’ll want to make sure the guardian you choose is competent, financially stable, and trustworthy. Here are a few important factors to weigh when deciding who your child’s legal guardian should be.

Think about who would love and care for your child in the way you would.

People often choose close family members – parents, siblings, cousins, aunts and uncles, etc. – as legal guardians because there is already an existing bond between them and your child. If you have a loving, supportive relationship with your family and feel confident that they would extend that love to your child as a guardian, it makes sense to appoint one of them.

Depending on your dynamic, a family friend or other non-related trusted adult in your child’s life could also be a viable choice.

Consider your potential guardian’s background, values, and lifestyle.

You may think your sister would be the perfect guardian because she’d love your child as much as you do. But if she has children of her own and is struggling to make ends meet, you may not want to place that potential burden on her. Similarly, you may have a wealthy aunt who could easily provide for your child, but you’re concerned about how her political or religious views might impact your child’s development.

It’s important to strike the right balance between someone who is both emotionally and financially available to raise your child. Ideally, you’ll choose someone whose values and beliefs align well with your own, so your child’s transition into their care and household will be smoother.

Have a conversation with your potential guardian about raising your child.

Think you’ve found the perfect guardian? Make sure you give them a heads up. Although you do not legally have to obtain someone’s permission before naming them a guardian in your will, it is strongly advised that you speak with the person and give them the option to back out. That person has the right to refuse guardianship if asked by a court, so getting their permission is not only courteous, but crucial to ensuring that your wishes are honored. Ask your potential guardian if they feel comfortable filling that role in your child’s life, as well as shouldering the financial responsibility for your child until adulthood.

Made your choice? Make it official.

Once you’ve chosen your child’s legal guardians and spoken with them about taking on this responsibility, it’s time to add it to your will. Set up a meeting with your estate planning attorney to add this information your will and make the decision official. Remember, if circumstances change or if your original choice no longer feels comfortable being named a guardian, you’ll need to update your will with a new choice as soon as possible.

Deciding who you want to be responsible for your child if you die can be intimidating, but take your time and make this choice carefully – it’s one of the most important estate planning decisions you’ll make as a parent. Hopefully your legal guardians will never have to step up to the plate, but if they do, you’ll feel good knowing that you’ve made the best choice for your child’s future and well-being.

Need an estate planning attorney? The Law Office of Patricia E. Tichenor, P.L.L.C. is here to help. Contact us today to speak with one of our experienced, compassionate counselors about drafting or updating your will.