For many parents, choosing who will raise their minor children if both parents die is not only disturbing to think about, but is often the most difficult decision they have to make when planning their estate. However, it is also one of the most important. Failing to make and document the decision can lead to outcomes the parents never would have wanted for their children. An individual who wants to establish legal guardianship of a child or adult with special needs will need to gather certain documents and file forms with the court, among other preparations. Additionally, each state has its own set of laws and procedures for establishing legal guardianship.
This sub-section of FindLaw’s Family Law Center contains a number of guardianship resources, including examples of select state guardianship laws, links to some state-specific legal guardianship forms, suggestions for what to consider when choosing a guardian for your child, a checklist of documents and other information you may need to gather before establishing guardianship, and other related resources.
Preserving All Guardianship Documents
If you are considering becoming a guardian, you'll want to gather as many documents as possible. Whether you’re the guardian of an elderly relative, a child, or someone otherwise unable to make their own legal decisions, you are responsible for the management and safety of that person's assets. As such, you need to gather every document relevant to the management of these assets. Also consider locating any documents about medical care or treatment, particularly invoices and insurance information.
Pre-Selection of a Guardian and Estate Planning
Many people decide to pre-select a guardian for themselves in the event that they are incapacitated or disabled. Why? They might not trust the court to choose the appropriate guardian, or they simply might not want to risk such a situation. With a duly probated will, a durable power of attorney, and a medical directive, you can outline your precise wishes, circumscribe and properly define the powers of the guardian, and choose secondary and tertiary guardians to take the place of the primary guardian in the event that the primary guardian cannot or does not want to fulfill his or her role.
Appointing a Legal Guardian for your Children
In case of the unfortunate event that you become unable to raise your children, you can (and should) establish a guardianship for your children with someone you trust. The best way to do this is to spell it out in your will. You can even create more than one guardian for one child, though this has the potential to create problems should the co-guardians ever disagree. Usually, if the guardians are a married couple, this situation works out great. Just be sure to name them both in your will so that they both have legal custody and power to make decisions for your child.
How a Family Law Attorney Can Help You
Becoming legal guardian of a child is a huge responsibility with a lot to consider. Think carefully about the questions above and plan accordingly. It's always a good idea to consult a lawyer if you have any questions or need help.