What is a legal guardian, and how to choose one for your child

If you’re the parent of a minor child, then nominating a legal guardian for them is one of the most important decisions you can make when you create a will.

A legal guardian, also called a personal or custodial guardian, is someone who has the legal authority and responsibility to care for a minor. The duties of a guardian are like your duties as a parent. However, if your child is in a legal guardian’s care, they aren’t considered the guardian’s child. Instead, your child would be their ward. Wards can also be incapacitated adults or those with disabilities — and you can nominate a guardian for them as well.

When you create a last will and testament, you and the other parent should nominate a guardian you trust. If you don’t, and you both die before your child reaches adulthood, then the courts will have to choose a guardian without your input.

Responsibilities of a legal guardian

Guardianship laws vary by state, but a legal guardian generally has the authority and responsibility to provide for their ward’s care and upbringing. Like a parent, a legal guardian should provide for daily and long-term needs, including:

• Food
• Shelter
• Education
• Clothing
• Medical and dental care
• Physical and emotional safety

Legal guardians often provide financial support to those under their care, though they may not have authority over the ward’s money or property. Those responsibilities may instead fall to a conservator.

How to nominate a legal guardian for your child

There are a few steps you should take to nominate a legal guardian for your child:

1. Coordinate with your child’s other parent.

By default, a minor child’s surviving parent will get sole legal custody if the other parent passes away first. But you may want to prepare for the chance that both you and the other parent could pass away at the same time. To do this, you should both agree upon and list the same guardians in your wills. Doing so helps to avoid the stress and confusion that might result if you name different guardians.

Also keep in mind that step-parents aren’t automatically considered legal guardians of their stepchildren. If you’re part of a blended family, that’s even more reason for the parents of each child to agree on and name the same guardians in their wills.

2. Speak with your potential guardians.

You should always speak to the people you want to name as guardians of your children before actually nominating them. Guardians don’t have to serve, so it’s important you choose people who are willing and able to care for your child. Speaking to your nominees also avoids any surprise they might feel if they do get called upon to serve. And it gives you the opportunity to discuss your hopes and expectations for how the guardian will fulfill their role.

3. Decide on an order of succession.

It’s a good idea for you and the other parent to name at least one other potential guardian for your children. Identifying a backup will be helpful in case your first choice is unable or unwilling to serve.

4. Write your nominees’ names in your will.

You can nominate a legal guardian for your minor children by declaring the names of your nominees in your last will and testament. Online tools (such as FreeWill) have built-in capabilities for specifying guardianship of minors. After answering some basic questions, you receive printable will forms that state your wishes in clear legal language. If you have more complex guardianship wishes, you might want to see a qualified attorney as well.

5. Occasionally revisit your will and make updates.

Your life, relationships, and preferences will likely change over time. That’s why estate attorneys recommend revisiting your will every few years, or whenever you experience a big life event, like getting married or having a child. When you review your will, make sure the guardians you nominated are still relevant.

Who can be a legal guardian?

To qualify, personal guardians must be an adult (18 in most places), competent to do the job, and a legal resident or citizen of the United States. The court has to approve all nominees for guardians.

When evaluating guardians, parents and courts often consider the nominee's:

• Relationship to the child
• Maturity and competence to take care of another person
• Financial situation
• Geographic location
• Values
• Willingness and ability to keep siblings together

The courts may also deny people with criminal records the ability to serve as a legal guardian.

How to choose a guardian for your child

Naming legal guardians is one of the main reasons that parents make a will. But choosing a guardian for your child can be one of the hardest choices you’ll ever make as a parent. You have to consider your family situation, who will be the best caregiver for your kids, who is willing to serve, and so much more. While no one may be the perfect match, choosing someone you trust may be better than letting the courts decide for you.

It’s also possible for you to choose two guardians: a personal guardian to manage your children’s daily needs, and a financial guardian to manage their inheritance.

To help you choose the right guardians, here are a few factors you can consider:

• Where the guardian lives
• Their age and health
• Their character and values
• Whether they share your parenting style
• Their own family and financial stability
• Whether they are good with savings and money
• Whether they're organized
• And, most importantly, whether they love your children and whether your children will feel loved and safe with them

Beyond all this, you also need to choose someone who is willing and able to serve.

What happens if you don’t nominate a guardian?

If you pass away without a will that nominates a guardian for your minor child, the other parent will usually get custody. But if the other parent also passes away or is unable to care for your child, the court will decide for you. In this circumstance, the court will usually ask other family members to volunteer. They will appoint guardianship to whoever they determine will serve the best interests of your child. If none of the volunteers are fit or nobody steps forward, your child may become a ward of the state and enter the foster care system.

Protect your children by making a will

If you’re like most parents, you spend each day trying to provide your children with the best possible life. Nominating a guardian in your will ensures that your children will continue to be loved and protected, even if something were to happen to you.

Ready to get started? Create your free legal will and nominate legal guardians for your children in as little as 20 minutes.