Selecting a Legal Guardian – Why, Who, and How

Estimated reading time: 5 mins

It can be difficult to think of a future for your children which you are not physically part of, but it is important to take the time to legally nominate a legal guardian for your children, should such a loss occur. What is a Legal Guardian exactly, you ask? A Legal Guardian is an adult approved by court process to have custody of, and care for, a child until that child reaches the age of 18.

If a parent does not make the decision to nominate a legal guardian, the process will be left to any adult who chooses to come forward and ask for custody of your child. The final decision would then be left to the court.

Figuring out Who to Select and Nominate

Family Values – the process begins with a close look into your, and if applicable, your partner’s values regarding parenting. The process of identifying your values and selecting the most important ones will create the job description for you to evaluate potential guardian candidates against. Some considerations may include your moral and ethical values. For example, love, kindness, generosity, curiosity, empathy, determination and grit, honesty, justice, and fun can each play a crucial role in the raising of a child. These values being held, demonstrated, and taught will help shape your child’s life view and path.

Suitable Candidates – after identifying which values are most important to you, you can start flipping through your mental rolodex of friends and family members and identifying those people who demonstrate those values in their lives. This part in the process may also be the most difficult.

It might be challenging to imagine anyone else taking in your children and loving them the way you do. Some people feel that there is no good, or even acceptable, guardian option available to them. Others have to deal with the reality that their own assessment of family or friends varies, sometimes wildly, from that of their partners, and then deal with collaborating and coming to consensus with these other views.

At the end of the day, it is unlikely that you will find a candidate that feels perfect, and the consideration with the most weight will often be whether you can see the candidate truly loving your child.

Consider the Circumstances – In addition, you will also want to consider these candidates’ specific circumstances.  These can include physical location, home environment, mental stability, economic stability, their own family and relationships, age, health, and capability with children.

In addition, you may want to consider what role they have played in your child’s life to date, and think through how they would need to grow, plan, or change to accommodate your child into their lives. If they are living in a studio apartment in Sydney now, what would the plan be if they were going to suddenly grow to a family of four? If you child was nearing adolescence, would it make sense to relocate the child to a new city, town, state, or country?

If the person you have in mind is married, is the marriage no longer being in existence a deal breaker? Is the candidate, but not the spouse, who you really want to name? It is best to nominate who you really mean, be it a married couple, or an individual, to avoid the chance that in the future, for example, you end up with a former sister or brother-in-law with custody of your child when that is not at all what your wishes were.

I’ve Figured Out Who to Ask – Now What?

Have a Conversation – Once you have a candidate or candidates for guardian, it’s advisable to approach them and talk about the possible circumstances if this ever came into existence. Would they be willing to act as the legal guardian? Would they move into your family home? Would they need to relocate from out of state? Do they have enough spare time in their career to care for children? This can also be a helpful time to discuss other planning measures you are taking, such as putting a children’s trust into place, buying a life insurance policy, etc. This can help to get everyone on the same page and start to think through what essential actions and changes would be needed.

Make it official – a Will and Durable Power of Attorney are the two places you can legally nominate a guardian of a minor child in Washington state. By taking the time to put these documents into place, you are ensuring that your consideration and wishes will be given full weight if a legal guardianship is ever necessary for your child. The nomination of a guardian does not need to remain static. In fact, it is one of the most frequently changed nominations in estate planning.  Sometimes, it may be that the nomination needs to be updated as time passes, or relationships change, or new circumstances come into view.

About the Author

Megan is the owner of Gebhardt Law Office, P.S., where she has an estate planning practice that focuses on flat fee estate planning. She values the opportunity to work with families and individuals in preparing their estate plans. Giving back to the community is a fundamental part of Megan’s practice as an attorney. She regularly speaks at PEPS and other organization’s events. She also serves on the Board of Directors of Junior Achievement of Washington and on the Board of Trustees of the Valley School. Megan lives in Seattle with her family of four, including a husband, and two sons, aged 9 and 7.

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