April 20, 2026
It is a topic no parent wants to think about: What would happen to your children if you were
gone? However, facing this question is one of the most loving and powerful things you can do
for your kids. If you take no steps to legally nominate a guardian for your minor children, a judge
who does not know your family will determine who raises them. The nominated guardian will be
responsible for raising and caring for your children when you cannot. The judge’s choice could
be someone you never would have chosen.
No one will ever be you or parent exactly like you. Still, there is likely someone you know who
could do a decent job providing for your children’s general welfare, education, and medical
needs if you are no longer available to do so. Parents with minor children need to nominate a
guardian in case both parents die or become incapacitated (unable to manage their own affairs)
before their children reach adulthood. While the likelihood of that happening might be slim, the
consequences of not naming a guardian are serious.
If you fail to nominate a guardian (typically done in your last will and testament), a judge who
does not know you, your kids, or your family will make that choice for you. This judge will pick
the person they think is best based on the standards and rules laid out under state law—and
that person may not be the one you would have chosen. And without your guidance, your family
members may squabble over who gets to raise your children, especially if money is involved. In
the worst-case scenario, if no one is willing to take care of your children, they could end up in
foster care.
How to Choose a Guardian
How do you choose the right person to care for your minor children if you are no longer here? It
is a huge decision, and there are many things to consider. Here are the factors our clients have
considered when selecting guardians and backup guardians:
● How well the children and the potential guardian know and enjoy each other
● How aligned the potential guardian’s parenting style, moral values, educational level,
health practices, and religious or spiritual beliefs are with yours
● The distance the potential guardian lives from you, whether you want your children to
stay where they are (for example, so they would not have to move from a familiar school,
friends, and neighborhood), and whether the potential guardian would be willing to
relocate to your area if that is your wish
● The age and health of the potential guardians
○ Grandparents may have the time but not the energy to keep up with a toddler or
a teenager.
○ An older guardian may become ill or die before a child is grown, so your children
may face a second loss.
○ A younger guardian, especially a sibling, may be busy finishing college, starting a
career, or raising a family of their own.
● The potential guardian’s level of emotional preparedness and interest
○ Someone who is single or who does not want children of their own may not be
interested in or able to care for your children.
○ Someone with a houseful of their own children may not want more around or be
unable to accommodate additional children financially or due to lack of space.
WARNING: Serving as your children’s guardian is a massive responsibility. Instead of surprising
someone with this role, talk to your top choices beforehand and confirm their commitment to
serving. You should also name at least one backup guardian in case your first choice cannot
serve.
Who Is in Charge of the Money?
Raising your children should not be a financial burden for the guardian. You are likely planning
to provide enough money from your accounts, property, and life insurance to cover most of your
children’s needs. Some parents even set aside extra money to help the guardian accommodate
new additions to their family (for example, funds to buy a bigger car or add a room to their
home). However, planning for your children’s financial future is the first step; you must also
decide who should be in charge of that money. Here are some points to think about when
making that determination.
● The best person to raise your kids may not be the best person to manage their
inheritance.
● Having two different people in charge—a trustee to manage the money and a guardian
to care for the kids—can create a system of checks and balances. The guardian would
have to ask the trustee for funds, which can add an extra layer of protection and security
for your children’s inheritance.
● On the other hand, having one person raise the children and handle the money can
simplify things. If you choose the same person to serve as both guardian and trustee, it
is imperative that you fully trust them. They will be making routine and important financial
decisions with no one else involved. You want to be confident they have the time,
judgment, and skills to handle both roles well.
Let’s Continue This Conversation
Guardianship for your minor children is not an easy conversation to have, but it is one of the
most important things you will ever do for your children. Let us help you put your wishes into a
legally binding plan. Remember, you can always change your mind later about whom you
choose. Although the chance of a guardian ever having to step in is slim, your role as a parent
is to plan ahead and protect your children. Call Tina M. James, Esq. to put the right protections
in place for your children and their future.
