Trusts and Estates

Assigning a Guardian for a Child or Adult

Reviewed by Betsy Simmons Hannibal, Attorney
You can name a legal guardian for your children in your will. If you don't name one, the court will assess the situation and decide what is best for your child.

A legal guardian is someone who is appointed by the court to take responsibility for another person, known as a "ward." A ward can be either a child or an adult who for some reason cannot manage his own affairs. Although you can appoint a guardian in your will, the probate court is not obligated to accept your choice.

If You Don't Name a Guardian, the Court Will Do So

There is no set procedure for determining who will act as your children's guardian after you die. If you don't leave a valid will, or if your will doesn't appoint a guardian, the court will select whoever appears best-qualified from among those willing to serve. Since you are probably in the best position to know who would be the most appropriate guardian for your children, you should name your preferred guardian in your will. Be sure to name an alternate guardian as well, and obtain the advance permission of both candidates.

Guardians Have Far-Reaching Authority

Choosing a guardian shouldn't be based on selecting someone you or your children like. A legal guardian has the authority to make important life decisions for your children, including where they will live, where they will go to school, and what religion they will practice. A guardian even has the authority to consent to medical treatment or to choose among alternative treatments. Consequently, make sure to choose someone who shares your values. Consider whether your chosen guardian has the financial ability to raise your children. Set aside money in your will for this purpose. If your preferred guardian is married, consider nominating the couple as co-guardians. Your state's law may limit the appointment of out-of-state guardians.

Adult Guardianships Are More Complicated

Guardians are appointed for adults who are physically or mentally incapable of providing for their own needs. Establishing incapacity may require evaluation by a professional. If the ward is partially capable, the guardian may have only limited authority. If the ward owns property, you are free in most states to appoint one guardian to manage the ward's finances and one guardian to make other life decisions for the ward. In some states, a guardian with authority only over the ward's finances is known as a conservator.

The Court Will Make the Final Decision

The court almost always appoints the guardian who is named in the will. However, the basic legal standard is the "best interests of the ward." This means that the court can select another guardian if it finds your choice inappropriate. If your children are older, greater weight will be given to their preferences. The court might question the guardianship candidate and demand evidence, such as a police record or financial records, to determine whether or not the proposed guardian is fit to perform guardianship duties.

A Lawyer Can Help

The law surrounding guardianship of a minor or an incapacitated adult is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a family or estate lawyer.

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