Who Will Care for Our Children?

Naming a Guardian for Minor Children: All parents worry about what would happen to their children if both parents died. This concern draws many people to lawyers' offices to start the estate planning process..

If one parent dies or becomes incapacitated, then usually the surviving parent will retain sole custody of any children, unless special circumstances exist. If both parents die, then usually there must be a court action to appoint a legal guardian for the children.

In such a proceeding, the court will always look first to the desires of the parents, preferably expressed in a written Nomination of Guardian. The court is required to appoint a nominated person as guardian unless this would not be in the best interests of the child.

Of course, it is very important to carefully consider who would be the appropriate guardian of your children. Consider many options: will this person be able to care for your children until they are 18 or 21? Even if one person is suitable, might there be an even better choice?

Be sure to ask your "nominee" if they would agree to care for the children if something happened to both parents. Don't risk putting someone in the awkward position of first learning of your nomination after you die. Even the most supportive and caring friend or relative may have good reasons for declining to take on the burden of caring for more children.

You should also nominate alternate choices for guardian, in case your first nominee is later unable to take your children.

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