Guardianship: Naming Someone to Care for Minor Children

A guardian for a minor child is someone a court appoints to care for the child when no parent can. This article explains how that works and how a will fits in. For the first steps for new parents, see Why Every New Parent Needs a Will and Guardian Plan.

What happens if I do not name a guardian?

If no parent is alive or able to care for a child, a court gets involved. The Alaska Court System describes a hearing, with notice to certain people beforehand, and says the court may appoint a temporary guardian for up to six months if needed. The court’s duty is to the child, so it looks at who is willing, available, and suitable.

How does a nomination in my will work?

It is a strong signal, and in some states more than that. The U.S. Army’s legal assistance office says a parent’s choice is not absolutely binding on the court but is highly persuasive. A Nolo guidebook says a named guardian cannot serve until a court approves, and a North Carolina law firm explains that the nominee applies to the clerk of court. Alaska works differently: its court system says the guardian named in the will of the last parent to die has the right to act, and the court holds a hearing if someone objects. If parents’ wills name different people, the North Carolina firm says the later nomination may be considered, but the child’s best interest controls.

Does the child get a say?

In some states. The Alaska Court System says that if a child is 14 or older, the court must appoint the person the child chooses unless it is not in the child’s best interests. Other states differ, so ask a local attorney.

What is the difference between a guardian of the person and of property?

They are separate appointments. A guardian of the person raises the child, and a guardian or conservator of property manages the child’s assets. A law firm’s checklist says the same person can serve in both roles or different people can, and that naming different people can add oversight.

How can I protect money left to a minor?

A minor cannot easily hold large assets. The Alaska Court System lists common routes: a trust created under a will, a custodian under the Uniform Transfers to Minors Act, or a court proceeding in which a conservator manages property for the child. Naming a minor directly on an account or policy can mean a court has to step in. Two law firms advise naming a trust or using a custodial arrangement instead.

Can I name more than one guardian?

Yes. WillMaker says parents often name a married couple as co-guardians, and that it is usually best to name the same guardian for all siblings, unless one child’s needs call for something different. Always name a backup.

What if the other parent is alive?

Usually, a surviving parent continues to care for the child. FindLaw notes that a stepparent who has not legally adopted a child may not be favored over the child’s other parent. If you are divorced, ask an attorney how your nomination would work.

Where does this belong?

In your will, with your beneficiary designations lined up behind it. See Wills, Trusts, and Power of Attorney.

This is general educational information, not legal advice. Laws about wills, guardianship, and powers of attorney vary by state, so an attorney licensed in your state can confirm what applies to you.