No parent wants to think about what would happen to their kids if something were to happen to them — but every parent should. It’s one of those thoughts that, as soon as it surfaces, sinks right to the pit of your stomach.
Unfortunately, having kids doesn’t make us immortal (can you imagine, though?!), and so we have to plan for those super unlikely plan B’s — just in case. You might have lots of questions before you start your plan:
- Who could be trusted to take care of your children?
- How will they afford their care?
- Can I leave instructions for how to raise them?
- And how exactly does the court determine who gets legal custody?
In happier news, if you’re ready to start planning…you can address some of these concerns by putting a comprehensive estate plan in place — one that includes explicit guardianship nomination. Take the next few minutes to understand more about what guardianship is, and how to ensure your plans are ready to go.
What is guardianship?
Fair question! Guardianship permits a caretaker (other than the parents) to have legal custody over a child until they either reach the age of 18, or are legally adopted.
A child’s legal guardian (aka “guardian of the person”), is responsible for their day-to-day care, essentially taking on the role of a parent. Care includes providing shelter, food, education, medical care, among other things.
What about the financial part, you’re wondering? Well in some cases, a “guardian of the estate” may also be designated to manage a child’s property and finances. This would include managing any assets left to the child, as well as paying for their living expenses. Depending on what the parents (and the court) think is right for the child, the guardian of the estate and the guardian of the person can either be the same or different people. Nominating the same person for both roles can make things more efficient and lessen any potential financial burden on the nominated guardian.
How do I nominate guardians for my children?
It’s much easier than it sounds. Here are the two most common ways to formally nominate guardians:
(1) Through your Last Will and Testament (most people choose this option).
To nominate through your will, simply include a provision stating who you’d want to serve as your children’s guardian(s) in the body of your will and then complete the necessary steps to legally execute the document.* You can nominate guardians for your children – and leave instructions for their care – through Qwill.
*Will execution requirements vary state by state, but generally include signing and dating your will before witnesses and/or a notary public.
(2) Through a separate guardianship nomination document.
If you’d like to use a separate guardianship nomination document, you can draft a document with an attorney or on your own (a sample document can be found here), and then sign and notarize it. For maximum effect, both you and your child’s other parent should nominate the same guardians in your individual wills or nomination forms.
It’s important to note that although the court takes your wishes into account – and your nominations are given considerable weight during the process – the court has discretion in deciding whom to appoint as guardian of your child. Ultimately, the court will consider what is in the best interests of the child. Thus, it is important to name someone whom you trust and who is willing and able to raise the child in a stable environment.
When would a nominated guardian be granted custody?
Hopefully never! But again, just in case, guardianship comes into play after both a child’s parents are deceased or incapacitated.* The court then holds proceedings to determine who to appoint as the child’s legal guardian. To make this determination, they’ll consider various factors, such as:
- Any instructions or wishes left behind by the parents.
- Who is able and willing to care for the child?
- The proposed individual’s level of fitness to be a guardian.
- The child’s preferences (given more weight with older children).
*If one parent dies, the surviving parent generally receives custody of the children unless they’ve been deemed unfit and/or have had their parental rights terminated.
What if I want to leave specific instructions regarding how my children are raised?
While not all parents choose to do so, you do have the option of leaving behind guidance for your guardian on how you’d like your children to be raised. For instance, you may want to provide your preferences on the following:
- Family unit preferences: Whether your children (if multiple) are to be raised together in the same family unit;
- Family bond preferences: Whether you’d like your children to maintain contact and visitation with their other relatives;
- Religious preferences: If there is a specific religion you would like your children to practice;
- Healthcare preferences: Any special instructions about healthcare treatment or dietary styles;
- Educational preferences: Whether you’d like your children to stay in the same school district;
- Residential preferences: Whether or not you’d prefer your children to continue living in the same city and state.
Keep in mind that the specific instructions you leave behind are merely preferences — they may help your guardian feel confident in knowing they are raising your children the way you would have wanted, but they cannot be legally enforced.
What happens if I don’t nominate someone?
What are you thinking, Karen?! JK :). But seriously, make sure this isn’t you. If you don’t leave behind a nomination, the court will appoint a guardian for your children based on state law and other considerations. You will have no impact on the process, so the court may appoint persons to care for your child and manage your child’s property whom you never would have wanted.
Without knowing your express wishes, there may also be disputes concerning how any property you’ve left behind for your children should be managed, or how they should be raised. These issues may take time for the court to resolve, leaving your children and loved ones in limbo. By creating a guardianship document, you’re able to convey your express wishes to the court about how you want your children to be raised and their assets managed, as well as move the guardianship process forward more quickly, efficiently, and economically.
How can I create a guardianship nomination document with Qwill?
We’re glad you asked! As mentioned, Qwill bundles guardianship nomination along with your Last Will and Testament document (the more commonly used approach). You can have both your will and guardianship preferences done in just a few minutes using our iPhone app. Find us in the app store, or learn more on our website.
So there you have it — add to your peace of mind by creating an estate plan with guardianship nomination in it today.
Alicia is a fearless legal warrior who proudly notes that – during her very first oral argument in court – she defeated a team of opposing counsel who had a combined total of > 100 years of litigation experience (take that patriarchy!). Before joining Qwill as Director of Ops and Legal, Alicia spent five years representing consumers in cases involving privacy rights, false advertising, and consumer fraud. She’s passionate about meditation, self-actualization, and improving the world.