Nominating Guardians for Minor Children

Parenting is hard. The relentless march of daily caretaking for a young child can make planning for the future seem insurmountable. Certainly, no one else could replace the attention, care, and affection that you have for your own children. But even if the possibility seems unimaginable, it is critical to have a plan for the care and support of your children in the event that something unexpected happens to you.

When a child’s parents die or become incapacitated, the responsibility for their care can be handed over to a guardian. Unless you nominate a guardian as part of your estate plan, your child’s care will be in the hands of a judge, who will be asked to seek out potential guardians among your family and, if unsuccessful, assign your child to be cared for by the state. Even if some family members do step forward to provide care, absent a formal nomination of guardian, the legal process can be convoluted, expensive, and unpredictable.

Preparing a nomination of guardian requires serious, thorough conversations with your family and network of support as well as a carefully drafted estate plan.

As a first step, you (and your partner, if applicable) should consider which specific people will act as guardians for your child or children in the event that you die or become incapacitated.  Most parents nominate two guardians, one guardian to provide daily care (ie, who will be responsible for housing and feeding) and one guardian to be responsible for your child’s finances (ie, who will manage any money, property, or assets that you leave behind). The division of responsibility between a guardian in charge of the child’s “person” and a guardian in charge of the child’s finances creates some checks and balances and helps ensure that your interests are respected even after you are gone. Although it is generally responsible to name at least two more alternative guardians, naming many more can be risky. The more guardians you name, the greater the chance of conflict between family members that may have to be settled in court, to the detriment of your child.

Next, it is critical to discuss your proposed guardian nominations with all of your immediate family, including grandparents, parents, siblings, and any other close relatives and friends who might be involved in providing care. You want to make sure that everyone in your child’s circle of care understands who you expect to be in charge of them and what expectations you have about how they will be raised. Some family members will have their own ideas about who should provide care that might conflict with your own. It can be important to have hard conversations with family members ahead of time, so that no one is surprised when they open up your estate plan.

Finally, once you have identified your guardians and alternate guardians and discussed your plans with family, you should formalize your nominations as part of a comprehensive estate plan. In California, parents may nominate guardians to provide care and support for their children by executing a signed statement. Except in limited circumstances, the statement must be signed by both parents and is ineffective if signed by only one.

In addition to naming the nominated guardians, some parents should consider specifically naming persons who should not serve as guardians. Courts generally give great deference to the wishes of parents expressed in a guardianship nomination. But if you foresee a potential challenge—like from an overly ambitious grandparent or a sibling who feels slighted by being left out of the caretaking process—it can be helpful to leave some explanations in your estate plan about why particular people were left out.

The nomination form should be accompanied by other estate planning documents, most importantly a will and trust. Although the nomination ensures that someone of your choosing will have the legal authority to take custody and care for your child, a will and trust can safeguard your assets and make them available for your child’s care.

Your guardianship nomination is effective immediately upon signing and can be amended at any time.

Call the Law Office of Ravi Patel if you need help preparing or amending your nomination of guardian.