How to Appoint a Guardian for Your Child if You Die

Planning for the care of their child in case of unfortunate circumstances is one of the most important things parents can do.

Death, illness, incarceration, deportation, deployment and other situations can result in both parents' absence from a child's life. The sooner a permanent or temporary guardian is appointed in these situations, the more quickly the child can adjust.

Plan ahead to make sure the transition to a guardian goes smoothly if it becomes necessary for your child.

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What exactly is a legal guardian?

A guardian is legally responsible for the care of a ward, who is someone (often a child) unable to care for themselves.

The guardian must provide food, housing, medical care, education, protection and other essentials for the ward. If the ward cannot live in the guardian's home safely due to a disability, the guardian must set them up in an appropriate facility.

Generally, a child requires either parental care or a legal guardian until the age of 18.

How to make someone a legal guardian in case of death

Each U.S. state has its own guardianship requirements. A family lawyer can help you navigate the process in your state.

No matter what, don't assume whom guardianship of your child would go to after your death. Write your wishes down in a legal document, such as a will, parenting plan or government form.

Keep in mind that guardianship would only be necessary if your child's other parent were also dead or unable to care for your child sufficiently.

In many states, courts have final say on who becomes a guardian. They base the decision on what's best for the child and may let mature children weigh in. In these cases, your role as a parent is to tell the court your wishes and any relevant facts ahead of time.

May I use a will for child custody?

Child custody and guardianship are different. Custody generally applies when parents divorce or separate. Guardianship, on the other hand, becomes necessary when both parents are unable to provide care.

You can address both issues in a will. For example, a parent with sole custody might write in a will that, upon their death, their first preference would be for the child's other parent to take custody and their second preference would be for the child's uncle to take guardianship.

If you're divorced or separated you can use a parenting plan instead of a will. With this approach, parents agree on a guardian and sign together, which avoids the complication of each parent writing a different guardian in their will.

Make sure to follow your state's rules for parenting plans or wills. In case any questions arise after your death, it's a good idea to briefly explain your reasoning in the document and have it notarized.

Is there a legal form for guardianship of a child in case of death?

Many states have a standby guardianship form available online or at courthouses. You usually file this with the court before your child actually needs a guardian, and you may have to go to a hearing to finalize your selection.

The guardianship does not begin until a triggering event occurs, such as your death or incapacitation. Should guardianship become necessary while you're still alive, you will retain your parental rights after a guardian is appointed.

In certain states, a parent can only name a standby guardian if they're likely to need one in the near future — for instance, if they have a terminal illness or face deportation.

If a child has two parents with legal custody, both must consent to the standby guardian. If only one parent has legal custody, some states require the noncustodial parent's consent, while other states just give the noncustodial parent the right to object.

You can restate your wishes for guardianship in a will or parenting plan as long as you don't contradict information from your standby guardianship form.

How to choose a guardian for your child

The guardian you ask the court to appoint does not need to be related to you. However, it's important that you select someone who is happy to take on the responsibility and who will care for your child in a manner you agree with.

A legal guardian must be at least 18 years old and of sound mind and body. They must have the time and resources to look after a dependent. They must not have been convicted of any felonies, though a court has the flexibility to make an exception, depending on the state.

Choose someone who is clearly responsible enough to raise a child. For example, you should ask guardians you're considering if they have ever been suspended or disbarred from a profession. If they have been, the court may not approve them as a guardian.

You'll also want to consider the potential guardian's:

  • Religion
  • Location
  • Willingness to preserve the child's relationships with extended family (e.g., by arranging visits with grandparents)

In most states, a child can have up to two legal guardians — they tend to be married. If you name two, specify what should happen if one dies. And if you name a couple, say what should happen if they divorce or break up; without an instruction, they may continue to share guardianship until they ask the court to modify the arrangement.

After you select a guardian, reassess your choice on a regular basis, and update your document as necessary.

How to name a guardian in a Custody X Change parenting plan

Naming a guardian in your parenting plan is easy with the Custody X Change co-parenting app.

Click the parenting plan tab, and select the category death.

Then fill in the name of the person you'd like the court to appoint as your child's guardian if that becomes necessary.

Print the plan, and sign it with the other parent. Then turn it in to your court to settle your custody case.

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