Wills are often thought of as a way to control where our property goes after we die. While this is correct, these documents can do much more than that. If you have any minor children, a will can determine how they will be cared for in the event of your passing.
Choosing a Guardian
Now, if you choose to appoint someone to care for your children after your death, the law refers to this person as a “guardian”. The guardian has the same legal responsibilities in raising children as any natural parent.
Being responsible for raising a child is known as full “legal” and “physical” custody. It means that a guardian must provide both financial support (including housing), and is tasked with making important decisions for the child. These decisions include issues such as medical care, schooling, and religious preference.
Keep in mind that a guardianship lasts until the child reaches 18 years of age. Due to the importance of a guardian’s responsibilities, the person needs to be someone that you trust. It’s always a good idea for you to have an existing relationship with any potential guardian. It can also be helpful to speak with them about the guardianship before naming the person in your will.
That said, one of the most important guardianship considerations is making sure that the individual has stable finances and can support your children. While a guardian may be able to get public assistance from the state, this can complicate matters. If you are concerned about whether a person would be a good fit for guardian, reach out to a qualified attorney for advice.
How to Appoint a Guardian
Now, you have two basic options for nominating a person to serve as guardian in California. The most straightforward way is to simply name the person in your will. The other way is to fill out a “Nomination of Guardian” form that you may obtain from the court.
It’s important that you select more than one option for guardian. This is because there may be events that cause your first selection to be unavailable. For example, the person may predecease you, have financial struggles, or simply change their mind. For that reason, it’s always a good idea to have one or two backup options named in case your primary choice cannot fulfill the role.
Also, note that naming a guardian does not actually appoint the person to serve. Instead, the appointment occurs after you pass away. Specifically, the person is required to file an Appointment of Guardian form with the Probate Court. Certain individuals will need to be notified about the appointment, and there will be a court hearing.
Keep in mind that individuals not named as guardian will have the opportunity to request being appointed to serve. This is important because a court is not bound by your wishes. Now, they will take into account who you selected, however, the appointment will be based on what is considered to be in the best interests of the child. That said, in most cases, the person you select is normally considered to be in the child’s best interests, unless there is strong reason against the appointment.
Guidelines for the Guardian
Now, as part of nominating a guardian, you might also choose to provide further guidelines for raising your children. For example, you could request that your children stay in California, indicate which school you want them to attend, and specify how much contact you wish them to have with extended family members.
However, it’s important to note that while these guidelines may be helpful for the guardian, the guardian is not required to follow them. In other words, they do not form any sort of legal contract under California law.
What Happens if No Guardian is Appointed
Note that if your will does not designate someone to serve as guardian, the court will make the appointment. As mentioned, this is done on the basis of what is found to be in the best interests of the child. Keep in mind that there can be some uncertainty with this process and the person the court appoints may not be someone that you would have chosen.
For that reason, it’s important to consult with an attorney to ensure that your will and overall estate plan are handled correctly. This gives you peace of mind that your children are taken care of in the unfortunate event that something should happen to you.