How to Pick a Legal Guardian

Quick Overview

A legal guardian, the person in charge of the day-to-day care of any children under the age of 18, ideally is:

• Willing to do the job

• Healthy and young enough to stay with the kids until they are 18 They don’t have to be local

• They can also be the trustee

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Grandparents

• Double-check age and health - the court wants to permanently place a child

• If they are they best choice, lets support them with resources and financial support as they age

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How does the process work?

• The legal guardian needs to be approved by the court

• The court will consider your nomination, but they can select the person they think is best for the job

• If no one is nominated, they will ask everyone in your family if they will serve, before the child is placed in foster care

• An older child has a voice in where they want to stay and the possibility of becoming an emancipated minor (adult legal status) after the age of 16

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What if you have international family?

• Make sure to authorize your permanent guardian as well as a temporary local guardian

• Doing an estate plan is more important - you need to authorize resources to help pay for legal expenses, the process is more complex, probate is very bad

• Your international guardian may need to adopt the child to take them overseas

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What if I have problematic family members (drug, alcohol, abuse)?

• We can have you prepare a detailed declaration for the judge on why they should never be considered (least private, most effective)

• We can make a simple statement you do not want them to be considered (this will probably work, its not totally private, but does not require disclosing details)

• We can make a long list of who to consider first (most private, but won’t let the judge know that the problematic person is problematic.

How to Pick a Custodial Guardian

When you’re a parent of kids under 18, estate planning is about much more than money. It’s about ensuring your children are well taken care of no matter what happens to you and your partner.

That’s what the custodial guardian is all about. If you pass away or become incapacitated, the custodial guardian is the person you choose to take on the sacred responsibility of raising your kids until they are 18. This person is in charge of housing, feeding, clothing, schooling, making decisions about medical care for your kids.

It’s everything but the money. You can pick a different person (if you want) to be the financial guardian, managing money for your kids until they’re old enough and mature enough to take on that responsibility themselves.

How a Nominated Guardian becomes the Legal Guardian

You can’t automatically make someone take care of your kids. Your nominated guardian can decline to serve, and in California, they also have to be approved by the court.  You must nominate a person, not a professional service provider.

If the person you nominate declines to serve, it will go to the next person nominated, if no one else is listed, Child Protective Services will reach out to everyone in your family to see if someone is able to take the children. 

Whomever is appointed as legal guardian will have the option of quitting at any time.   They can call CPS and tell them they no longer want to care for the kids, and CPS will come collect the children within 24 hours.

If you are divorced the other parent will have custody if you pass away. You can nominate the person to have custody if the other parent has also passed away. If the other parent makes a different nomination the court picks between the two nominees using a ‘best interest of the child” standard.

How Court Approval Works:  

• Any person who wants to be nominated may petition the court to approve their request.

• If there is more than one applicant, the Court will select a guardian based on what is in the best interest of the child.

• The court will consider your nomination as important evidence that placing the child with the nominee is what is in the best interest of the child, but the court will also consider all other relevant evidence - what the child wants, a history of criminal convictions, health problems, etc.

• Courts prefer a permanent placement, and that usually means family - friends are more likely to decline to serve or to step down (especially if family wants to serve)

• The courts will continue to monitor the child and the legal guardian until the child is an adult.

Pick a Good Home For the Long Term

Choose someone who would provide the best permanent home for your children, even if they don’t live nearby. Young kids can move. If your children are older at the time, the court will consider their preferences.

If children are in high school, they get a lot of vote in where they want to stay.   If they want to stay where they are, they can apply to become an emancipated minor (a minor who has the status of an adult) or stay with a friend. That way they can finish high school in the place of their choosing.

Grandparents Are a Risky Choice

For many clients their first instinct is to pick their own parents to serve as custodial guardian, but this comes with a few significant problems.

The first problem is that it can set up your kids to lose another set of “parents” again in the first few decades of their life. Kids often form a new parental bond with the custodial guardian. If that person is already at an advanced age, your kids might soon go through another big emotional loss. This can also mean your kids may go through their 20s and 30s without the support of a parental figure at all.

The second issue is that age inevitably slows everyone down. So keep in mind that grandparents who have the energy to keep up with a 1-year-old now may not have the stamina to provide the right support to a teenager in 15 years.

And remember that if your parents are close to your kids now, they can still be loving, supportive figures in your kids' lives even if they don’t become the custodial guardian. They are still family.

For some people, regardless of age, parents are the right choice.   We can encourage your trustee to provide help through nannies, housekeepers, and help pay for the parents housing, if they are advanced in age or have financial limitations.

How we Support Guardians in Our Trusts (why our trusts our better)

The biggest problem with guardian nominations in most estate plans is failure to authorize gifts to the legal guardian. The presumption under the law is that the funds in your estate are for the support of your children, not for the support of the legal guardian. This can be problematic for your guardian because sometimes the best choice for your kids, is going to require a gift to your guardian - a gift that is not authorized by the trust.  

The biggest problem in the bay area is housing.   Your sibling or parent might be willing to move from Ohio and come and stay with the children, but there is no way they can pay market rent for your home.   We recommend and include clauses that authorize the trustee to allow your guardian to live in your home rent free, and use your car if needed.  

The next problem is legal feels and expenses.  The best long-term solution is usually for the legal guardian to adopt the child.  Outside of the emotional stability that can provide for your child and the guardian, it is also makes day-to-day life simpler for the guardian.   Once the adoption is approved, your legal guardian will have all the same rights as a parent - they can move out of state or the country and they do not have to report to the court or to CPS.  An adoption can be expensive, and it is not an expense of the child - it is an expense of the guardian.   Our trusts specifically authorize adoption expenses and any other legal fees of guardian be paid by the trust. 

The other issue is having a power of attorney over child care.  Hopefully you never need it, but if you become incapacitated or are travelling and cannot be reached, your family may need to make a medical or educational decision for your child.   Having a power of attorney over child care can make that process simpler for them.  We include this authority in your plan so you are not scrambling the day before a trip or surgery trying to get it done.  

Many families struggle with making sure both sides of the family will feel included and be part of the child’s life no matter who is nominated.  While we cannot force the legal guardian to  authorize visitation, we can authorize the trustee to pay for any expenses related to visiting both sides of the family. While it is not a perfect solution, it is better than nothing, and helps family’s feel that they have done everything they can to keep both sides of the family involved with a child’s life.   

International Guardians Take a Little Extra Planning

For a lot of clients, the perfect person to serve as custodial guardian lives outside of the United States. This is completely ok. It just takes a little more planning to make the details work just right.
We recommend naming someone living in the United States to serve as a temporary custodial guardian. Moving a child out of the country requires permission from the court - either an adotpion or a permision through the probate court.  It can take a year for the legal process that lets a foreign person adopt your kids and move them out of the country. Your temporary custodial guardian can look after your kids during this time.

Many people believe that your family can come, get your kids, and quickly take them home to another country. But it’s actually illegal to move your kids like this, and it can make it very hard for your kids or family to come back to the country later.

On the other hand, if your custodial guardian goes through the adoption process first, it can make life easier for your kids in the future. For example, it’s easier for your children to keep their US citizenship—but this should really be discussed with an immigration attorney at the time.

We also want to think about two common issues that can come up. The first is making sure the proposed guardian gets authorization to stay in the US long enough to get custody. If they cannot come into the country on a visa for some reason, this can create a problem. And we also want to consider any language barriers. If language might be an issue, it’s important to make sure there are people who can help translate at important moments.

Keeping contact information organized and available for the temporary guardian and the permanent guardian can help solve some of these issues. 

How we Support International Guardians in Our Trusts

It is very important to have funds available readily in these situations. Do your estate plan, don’t let your assets get tied up in probate court.  There are two reasons for this 1) it may take two years to get funds out of of probate court 2) even once te funds are available they cannot be used for the legal guardians expenses, only the child’s expenses.  If you have a trust, the funds will likely be available in two months and our estate plans specifically authorize the trustee to pay for your legal guardian to adopt a child or to otherwise pay for legal fees of the legal guardian.

Keeping Problematic Family Members from Becoming Guardian

For a lot of clients, it’s important to spell out who should never become custodial guardian. Perhaps there’s someone in your family with severe mental health or addiction issues. Or maybe there are issues of abuse of one kind or another. Whatever the reason, please tell us if there is someone you want to explicitly stop from getting custody of your children.

If something happens and your appointed guardian cannot take on the role, the court may need to make that choice for you. And if your family member’s problems are not a matter of public record (no arrests, convictions, etc), the court won’t know that the problems exist at all.

You have several options for preventing someone from becoming a guardian. Let’s go through them from strongest to softest.

Your Strongest Option

Include a signed document setting out the problematic facts (a declaration) with the nomination that explains why someone is not a good choice. This is a formal document intended for the court and it provides clear reasons. Because it will be presented in court it will not be private.

Your Medium Option

Write a letter to your family explaining your choices and who you want and why. This doesn’t have to become a part of your estate plan so it is a more private way to help persuade someone who you don’t want to serve as guardian to not come forward.

Your Softest Option

If putting something in writing seems too aggressive or too likely to prevent conflict, nominate a whole list of other people to serve ahead of the problematic person.  The court is likely to go with your choice—even if it’s your seventh or tenth choice—before they step in and pick someone themselves. This can work if there are other people who will step forward to become the guardian.