United States: How To Choose The Right Guardian

When preparing a will, the primary emphasis is typically on the disposition of property and related tax issues. However, selecting the right guardian to care for minor children is one of the most significant planning decisions you can make, as it may set the course for the rest of several people's lives. The failure to designate a guardian can put the lives of your children in the hands of an impersonal court system, and the choice of guardian will contribute to the essence of who the minor children become. The transition to life with a guardian is especially traumatic as a child comes to terms with a new parental figure, likely following a traumatic and untimely death of one or both parents. The guardian you choose will be responsible for helping to heal this wound, instilling values, passing on life skills and raising your children. It is of the utmost importance to choose a guardian with whom you and your kids are comfortable and who has the emotional intelligence, time and interest to raise your children in the event that you are no longer able to.

Choosing a Guardian

The first threshold for choosing a guardian should be finding someone who is willing to act in such an important and responsible capacity. Raising someone else's children is not a decision a potential guardian should take lightly, as assuming guardianship will change the rest of the guardian's life as he or she steps in to the role as surrogate parent. This is especially so if the guardian is not currently raising children of his or her own. Not finding an appropriate, willing guardian could create significant legal and emotional problems for your children and the uninterested guardian.

Besides finding a willing person, choosing a guardian involves objective and subjective assessments different from choosing other fiduciaries under a will and trust.  A proper guardian should be reliable and stable, with sound judgment and values that are similar to your own. The guardian will be your stand-in to comfort, teach and encourage your children as they struggle and grow to adulthood. A guardian who already has a warm and loving relationship with your child would be immensely valuable in such an emotionally trying transition.

Should You Select a Family Member?

Instinctively, many think the right guardian for their children is a family member. However, in some cases a non-family member may be a better fit. While family is frequently an obvious choice, individual circumstances may make this impractical or undesirable. Hopefully your children are very comfortable with grandparents, or an aunt or uncle who may have similarly aged children of their own. If this is not the case, a close friend with similar values, who lives nearby, and who has kids of his or her own may be a better option than a faraway relative. The choice is specific to your lifestyle and your relationship with your family.

Financial Considerations

Raising children is expensive. The costs can easily run into the high hundreds of thousands of dollars. Therefore, it is important to work with a knowledgeable estate planner who can help arrange financial support not only directly for your child, but also if necessary, for the personal costs that the guardian incurs in taking care of your children. You may want to consider leaving money for the benefit of the guardian as a way to show gratitude for the increased responsibility that guardianship entails. Another option is to name the guardian as an additional permissible beneficiary of any trusts created for your minor children. For those who cannot afford to leave additional funds for the guardian, choosing a willing guardian with means who would not be overly burdened by the high costs of raising additional children could help avoid placing a guardian or your children in a more difficult position than necessary.

A question that often arises is whether the individual being considered for guardianship should be different from the individual named as trustee of your children's trusts. On the one hand, naming different people provides a system of checks and balances that would help protect your children's interests. On the other hand, it is reasonable to assume that the guardian raising your children knows best in terms of their financial needs, and should not have to justify each expense to a trustee in order to receive a distribution for the child's benefit. In the end, the decision should really depend on the qualities of the particular individuals being selected for those roles.

Choosing a Couple or an Individual and Alternate Guardians

You may be tempted to choose a couple as the co-guardians of your minor children, as you imagine a nuclear family. Unfortunately, couples divorce and families break up. Choosing a couple could thus be problematic if they divorce or if the preferred guardian in the couple dies or is otherwise no longer able to serve in the role. Such a scenario could give guardianship rights to a person whom you are less inclined to have raise your children. Further, if no alternates are named, and the nominated guardian is unable to care for your kids, the decision as to their care could end up being made by a court. As a result, it is often preferable to name individuals instead of couples to act as guardians, and to name one or more alternates in case the first choice is unavailable. This way your wishes can be carried out and the paths of your children's lives are not at the discretion of a judge if you are unable to care for them.

Revisiting Your Choice of Guardian

Once you have carefully chosen your guardian and alternates, it is important to remember to revisit the choices as circumstances change. As children (and guardians) age, their needs and abilities change. You will want to make sure that the people you have selected a few years ago are still the right choice today.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions