Naming Guardians for Your Babies

Did you know that a Will is the only legal document where you can name a guardian for your minor children? You can nominate an individual or a couple to be a guardian if the worst came to bear. 

You can also express your preference for which half of the couple should be primary guardian. Say your sister is married to a man you do not care for -- you can nominate this couple so long as they are married, but if they are not married then just your sister.

Every parent knows in their own mind who would be the best person or family to care for their children if they were suddenly unable to do so. Your wishes as a parents should be put down in writing so everyone else also knows what your wishes are. This avoids the family fight over who will care for your babies.

If you are not married to your kid's natural parent and the other natural parent does not have joint custody of your child -- you may want to nominate other individual to be guardian. The best way you can do this is to write a Letter of Intent Explaining Your Choice for Guardian to include with your Will. In that letter, you calmly state facts and reasons why the child's natural parent is not best suited to be guardian and why the other individual or couple would be.

Let's say you have a teenage daughter who is going to a good high school nearby. Your daughter's mother lives out of state. As her father, your wish is that your daughter finish high school at this school because it is a good school and to maintain continunity in her life. So as her father, you decide to nominate your close friend to be this child's guardian if one is needed before your daughter turns 18.

In your letter, you can explain that the natural parent lives out of state, that your daughter's education is important to you and that this close friend you are nominating already functions as a mother figure to your child. This may be enough for a court to award guardianship to your close friend especially if the mother does not contest the proceedings or allows your close friend to assume care of your child.

There is so much at stake here. Naming a guardian for your babies in case something happens to you is doing the right thing by your children.

Comments

[Leanna]

Jennifer, I was glad to see a post like this today. I was just thinking that there are a lot of instances where estate planning intersect with family law issues. In a case like this where the child is a teenager, would you recommend that the custodial parent discuss with the child what their wishes would be, since in some states they would have input as to the guardian anyway?
Leanna

[Jennifer Sawday]

Leanna, Family law does intersect with estate planning issues in many areas. It is always a good idea to talk to your children about estate planning if they are old enough to understand why Mom and/or Dad have named guardians. Sometimes children will surprise their parents by stating that they would rather be with someone else instead of who their parents have in mind. It may cause the parent to rethink their nomination of guardian. Certainly, starting this type of dialogue with your children is a good thing.

[Tom]

What if you and your spouse *disagree* over who that should be?

If you each file dueling Letters of Intent, will it come down to who makes the more compelling case?

Also, how authoritative *are* such letters? Can the judge ignore your wishes?

[Jennifer Sawday]

Tom, I appreciate your comments. In a best case scenario, you and your spouse (as the child's parents) would agree on who should be named guardian.

As an attorney, I would not prepare a wills for a married couple who disagreed on guardians.

Also if the estate planning included a living trust funded with community property -- the married couple would need to agree on the terms of the trust including the successor trustee. I say this because the successor trustee will be managing the money for the child if both parents passed away. If you can't agree on guardians, can you agree on successor trustees?

Now with that being said, I have prepared wills naming multiple guardians and allowing the guardians to work together. This is an awkward arrangement, but it is better than nothing. The court deserves direction when it involves your parental wishes when deciding in the best interest of child.

For your last question, the letters are taken under consideration by the judge. Again the judge will make a ruling based on the best interest of child. If there is any issue on this, a child services investigation will be ordered to assist the judge in making a ruling on who should be guardian.

[maggie]

do you need to do this in a will or can you fill out a nomination of guardian to be used by the guardians if you (the parents) die?

[Jennifer Sawday]

Maggie,

Yes, you would need a Will to name a guardian for your children in the event of your death. In other words, a Will is the only document where you can name a guardian for your children.

[Tim Kay]

What is the authority for the proposition that you need a Will to name a guardian. Ca Probate Code Section 1502 simply requires a writing and expressly contemplates that the parent might die before the nomination becomes effective. It does not mention a Will.

1502. (a) A nomination of a guardian under this article may be made in the petition for the appointment of the guardian or at the hearing on the petition or in a writing signed either before or after the petition for the appointment of the guardian is filed.
(b) The nomination of a guardian under this article is effective when made except that a writing nominating a guardian under this article may provide that the nomination becomes effective only upon the occurrence of such specified condition or conditions as are stated in the writing, including but not limited to such conditions as the subsequent legal incapacity or death of the person making the nomination.
(c) Unless the writing making the nomination expressly otherwise provides, a nomination made under this article remains effective notwithstanding the subsequent legal incapacity or death of the person making the nomination.

[Sean]

Hi Tim,

There is nothing in the Probate Code that suggests one needs to draft a will in order to nominate a guardian of a minor person. This blog is simply inaccurate.