It is imperative to decide who will care for the kids well in advance just in case the parents don’t survive long enough to see their children become adults. Naming a legal guardian to take custody of the children and provide for their daily needs, basic health and education can be done by adding the information into a will. While the court has the final say, the parents’ choice will typically be honored when a will exists. In the absence of a will, or when a guardian is not named in a will, the courts will decide who becomes the legal guardian of the kids.

Why Name a Personal Guardian?

It’s not unusual for people to assume that their spouse will care for the kids when they die. While this is practicable to some extent, both parents might die closely together. This is where an estate plan is crucial. If both parents to a minor pass away, there wouldn’t be a ready contingency plan for taking care of the kids unless the parents appointed a guardian. Choosing a guardian would be left to the courts, and while a close friend or relative might volunteer, the best interests of the kids will ultimately determine who is best suited for the job.

Is Guardianship Undisputable?

Guardianship is not always absolute. The court will always consider the best interest of the children, including their physical, moral, intellectual and spiritual well-being before approving the parent’s choice of a guardian. Relatives having a significant attachment to the children can also challenge the guardianship, but they need to persuade the court towards rejecting the parent’s choice.

If the parents are divorced or separated, and the custodial parent passes on, the surviving parent is more likely to be awarded custody rather than any guardian appointed by the deceased. However, the appointed guardian might stand a chance if the deceased spouse left a memorandum persuading the court against appointing the surviving parent as a custodian, for instance, when the latter is missing, incompetent, or unwilling to care for the children.