Giving Legal Guardianship to Someone When I Die

by John Stevens J.D.

Making arrangements for the care of your children is perhaps the most important aspect of planning for an unexpected death. Parents can nominate a guardian to care for the children in such a situation. There are two types of guardians: a "guardian of the person" and a "guardian of the estate." One person can serve in both roles, or you can split these roles between two or more persons.

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Guardian of the Person

A guardian of the person is responsible for providing a home for the child and for making decisions regarding education, health care, religion, and other personal matters. A guardian of the person has the same authority with respect to the minor children as a parent who has legal custody. Although it is not a legal responsibility, the guardian of the person also assumes the role of the parent in providing love, attention and care for the child.

Guardian of the Estate

A guardian of the estate is responsible for managing a child's financial affairs, typically the money and property you have left him in your will. A guardian of the estate is necessary because minor children are legally incapable of making decisions regarding their property. Because a guardian of the estate is responsible for the minor’s property, most states require a guardian to post a bond. The bond acts as a type of insurance that protects the minor against mismanagement by the guardian.

Guardian Eligibility

Generally, there is no restriction as to who can be a guardian. Because a personal guardian assumes the parental role, a court must first approve a personal guardianship nomination before the guardian can act. In most states, a court is not required to approve a property guardian. Courts typically follow the parent’s guardianship nomination absent unusual circumstances. For example, if the proposed guardian has recently struggled with substance abuse or has a violent criminal past, a court will most likely appoint someone else.

Nominating the Guardian

When selecting a personal guardian, consider whether the potential nominee can provide a suitable living space for the child, whether the child and nominee have a good relationship and whether the potential nominee is financially stable and can provide for the child. It is also important to discuss the proposed nomination with the nominee. A guardian of the estate should be a responsible individual that can safeguard the child’s property. The guardianship nomination must be in writing and signed. Guardianship nominations are commonly included in wills or powers of attorney for health care, but you can also make such a nomination in a stand-alone document.