How to Appoint a Guardian for Your Children
Last Updated: February 12, 2025
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Key Takeaways:
- A judge may deem children “wards of the state” or “wards of the court” and place them in foster care without a court-appointed guardian
- In general, guardians must be over 18 or 21 (depending on state laws), financially and physically capable of raising a child, and available to take on the responsibility
- Discuss the responsibility with your chosen guardian and legally appoint them in a Last Will and Testament
Table of Contents
- How to Appoint a Guardian for Your Children
- What is a legal guardian of a child?
- Circumstances when you might need to appoint a guardian for your child
- What is the difference between a legal guardian and a Power of Attorney for a Child?
- What is the difference between guardianship and conservatorship?
- Responsibilities of a legal guardian
- Why appointing a legal guardian is important
- Criteria for a legal guardian
- Steps for appointing a legal guardian
- Next steps
How to Appoint a Guardian for Your Children
A parent's first responsibility is to secure the health and wellness of their children. Still, many parents delay the decision to appoint a legal guardian for their children out of fear of making the wrong choice.
It takes time to consider the qualities of an ideal guardian, but putting this effort in helps you feel confident in your decision. Once you've chosen a guardian, it's also important to discuss their role so that everyone is in mutual understanding. This guide helps you:
- Determine guardianship criteria
- Choose potential guardian candidates and finalize your decision
- Discuss guardianship responsibilities
- Appoint a legal guardian in your Last Will and Testament
What is a legal guardian of a child?
A legal guardian is a court-appointed or approved representative of a child with the authority to make pertinent healthcare, education, protection, and disciplinary decisions. Minors lack certain rights, such as making complex medical decisions or opening a bank account, so they require a trusted adult to step in.
A legal guardian will take responsibility if the parents can't fulfill their duties. This may be for various reasons, such as death, incarceration, or incapacitation. Legal guardians are typically responsible for a child, also known as the ward, until they turn 18 or 21 (depending on state legislation).
Circumstances when you might need to appoint a guardian for your child
A court may enact a legal guardian for multiple reasons. Most commonly, the parents are:
- Deceased
- Mentally incapacitated due to mental illness
- Physically incapacitated due to injury or illness
- Deployed in the military
- Incarcerated
In the event of the death of a parent with sole custody, guardianship is usually granted to the surviving or capable parent, even if a Last Will and Testament requests an alternative legal guardian. The exception to this rule is when the judge deems the surviving or capable parent unfit.
Legal guardians are typically appointed when parents are unfit, unavailable, or incapacitated for a very long period of time. If parents can temporarily not fulfill their parental duties, the parents may create a Power of Attorney for a Child. This document specifies a time period and is a temporary order of authority to another individual. During this time, the personal representative has legal authority to make maintenance, healthcare, and education decisions for the child. Parents can also grant the personal representative more limited or specific powers.
What is the difference between a legal guardian and a Power of Attorney for a Child?
The attorney-in-fact in a Power of Attorney (POA) and a legal guardian both grant somebody the authority to incur your responsibilities and care for your child. A court will appoint a guardian if the parent becomes incapacitated or deceased and does not have the necessary paperwork in place.
| Power of Attorney for a Child | Legal Guardian |
| A Power of Attorney is only valid if the principal is still alive. | Legal guardians are most commonly appointed once the parents are deceased or if the parent is deemed unfit. |
| The principal appoints a Power of Attorney. | The court must approve a legal guardian. |
| The principal decides what areas of the attorney-in-fact have powers to decide. You can limit the areas of decision-making as much as you want. | The chosen guardian and parameters in their decision-making are ultimately court-appointed. |
| You can create a Power of Attorney for your child at any time. | A legal guardian is only appointed when absolutely necessary. |
| A Power of Attorney is temporary and can be easily changed or terminated. | Guardianship can be temporary but is usually more permanent, and changing it will require going to court. |
Note: When creating a Power of Attorney, if you grant authority to a representative, you are called the principal, and the personal representative you appoint is called the attorney-in-fact.
What is the difference between guardianship and conservatorship?
Both a conservator and a legal guardian have decision-making authority over an individual.
A guardian makes all custody, maintenance, health, education, and financial decisions. A conservatorship limits the conservator's decision-making authority over a person’s financial decisions, such as paying bills, investing money, allocating assets, and managing a trust fund.
Parents often appoint a guardian to make all the decisions for their child. However, parents can nominate a guardian and a conservator if they want one person to make custody, health, maintenance, and education decisions and another to manage their child's finances.
Responsibilities of a legal guardian
A legal guardian takes on all of the responsibilities of a parental figure. They must protect and support the overall development of the ward by meeting emotional, mental, and physical needs.
Some of the responsibilities and decisions that a legal guardian is in charge of include:
- Basic necessities, such as shelter, food, and clothing
- Schooling and education
- Legal matters
- Medical care
- Extracurricular activities
- Cultural practices and religious affiliations
- Passport application
- Finances and banking
A good legal guardian will advocate for the child in all areas of life and provide an uplifting and supportive environment that nurtures their goals and aspirations. Parents should consider the physical and emotional elements of guardianship when selecting a caregiver for their children.
Why appointing a legal guardian is important
Imagining a situation where you cannot care for your child is exceptionally challenging. Unfortunately, unexpected situations can result in a child being left behind. Proactively planning for the worst-case scenario can ensure your children are in good hands if you cannot be there for them.
Appointing a guardian allows you to prioritize your child’s security, safety, and well-being while having an element of control over their future. A judge may deem children “wards of the state” or “wards of the court” and place them in foster care without a court-appointed guardian.
Benefits of appointing a legal guardian include:
- The child is more likely to be placed in a familiar and comfortable environment.
- You’ll have more control over the values and conditions in which a child will be raised.
- There is less opportunity for disputes between family and friends regarding who will care for the child.
- You’ll be able to allocate resources and finances in the proper direction.
- There is more opportunity for the legal guardian to prepare for a smooth transition.
Criteria for a legal guardian
It’s important to note that a judge can override the appointment of a legal guardian if the appointed guardian seems unfit or isn’t in the child’s best interest. When presented with a Last Will and Testament, a judge will consider whether the guardian meets the state’s criteria and if the placement is in the child’s best interest.
In general, guardians must be:
- Over 18 or 21, depending on state laws
- Financially capable of raising a child
- Physically capable of raising a child
- Available to take on the responsibility
The judge will also consider what’s in the child’s best interest by considering additional factors, such as:
- The child’s preference, which some states may consider as early as 12 years old, while other states require the child to be 16
- The relationship that the child has with the appointed guardian
- Morals, standing, and conduct of the appointed guardian
- Whether the guardian can fulfill the needs of the child
If the parent doesn’t leave a request for a guardian, or if the guardian denies the responsibility or the judge deems them unfit, a judge will typically consider the following candidates:
- Grandparents
- Close relatives
- Family friends
- The state
State laws for guardianship
Guardianship is dictated by state law. Each state has different laws regarding who can be the guardian of an adult, who can be the guardian of a child, the responsibilities of a guardian, and the bond requirements of a guardian.
To learn more about guardianship in your state, visit:
Steps for appointing a legal guardian
The process of determining a fit legal guardian can be overwhelming. We’ve curated these steps to help assist you:
Step 1: Determine if you have the authority to appoint your child’s guardian
Both biological parents usually have equal right to appoint a guardian. If the parents are still married and one passes away, the other parent will remain guardian of the children. Each parent can nominate a guardian in their Last Will and Testament to look after the children if both parents are deceased. However, both parents usually agree on the appointed guardian.
If the parents are separated or divorced, the court typically grants guardianship to the remaining biological parent if the custodial parent passes, even if the deceased parent had full parental rights and has requested another guardian in a Last Will and Testament. Guardianship requests do not override parental rights, but a judge will consider the request when determining a guardian. The primary exception is that the court may consider another guardian if they deem the surviving, non-custodial parent unfit.
If the custodial parent dies or becomes incapacitated and a stepparent has legally adopted the child, the court will give guardianship rights to the stepparent. A judge will honor the adoption.
If the parents appoint different guardians, it can make the legal process more difficult if both parents perish or become incapacitated. It is recommended that guardianship requests be discussed with all custodial or biological parents.
Step 2: Determine legal and preferred guardianship criteria
Look up the guardianship laws in your state to ensure that your chosen guardian aligns with them. It’s also imperative to consider what personal criteria you’d prefer in a guardian. Some questions you’ll want to consider are:
What kind of education, morals, and beliefs do you wish to instill in your kids?
What (if any) religious teachings and traditions would you like to be passed down?
How should their health be managed? Would you like them to follow a specific diet?
What kind of lifestyle and living situation would you like your child to have?
What (if any) religious teachings and traditions would you like to be passed down?
How should their health be managed? Would you like them to follow a specific diet?
What kind of lifestyle and living situation would you like your child to have?
Discuss these questions with your spouse, partner, or anyone who should be involved in the decision about the type of care you want your children to receive. Voice your honest and unfiltered opinions regarding your kids’ upbringing. This will help you identify the kind of person you want to consider for guardianship.
Our Last Will and Testament allows you to list two guardians. If the court deems them fit, both individuals will receive guardianship status. Often, these guardians will be in a relationship, but they are not required to be. The guardians will receive joint guardianship, meaning they must make decisions about the child together, including decisions related to primary residence, travel, finances, and education.
Step 3: Narrow guardian candidates and finalize your decision
If you’re making this decision with a spouse, write separate lists of all potential candidates. Once complete, compare each list. Evaluate each candidate's suggestions and look at them more closely. Ask yourself these questions:
- Is the candidate physically and financially able to be a guardian?
- What is the candidate's current relationship with your kids?
- If the candidate has existing children, how would your kids fit into their family structure?
- Would your children have to move far to be with the candidate?
- Does the candidate have a stable lifestyle to adjust to this significant responsibility?
- What other support systems, such as family and friends, will your child have with the new candidate?
These questions give you insight into choosing an appropriate candidate ready for the responsibility. If your child is of an appropriate age, consider discussing potential candidates with them to determine where they feel most comfortable.
Each state has different laws governing the age at which a minor can decide where to live. Some states, such as California, allow minors as young as 12 to file a petition for guardianship. A minor’s request, or guardianship preference, is one factor the court will consider when appointing a guardian.
Step 4: Discuss the responsibilities with your chosen guardian
Once you’ve identified the proper guardian for your children, set a time to meet with them and discuss the potential of you appointing them. Though having somebody entrust you with their children is a big honor, it also is a life-changing event. You want your chosen guardian to accept the responsibilities of raising your children.
Be open about your wishes and expectations about your child’s upbringing. Allow your chosen guardian to take some time to reflect on your conversation before solidifying your decision in any legal documents.
Step 5: Appoint a legal guardian through valid documentation
Individuals can use a few different documents to appoint a legal guardian. Most commonly, people use a Last Will and Testament. LawDepot offers a step-by-step questionnaire to help individuals tailor a Last Will and Testament to their assets and wishes.
In a Last Will and Testament, you record where you’d like your assets to go after your death. There is a section in this document where you can name a guardian for your children. If you already have a Will, update it using a Codicil to change the beneficiaries or change your choice of guardian. Without formally documenting your choice, some courts may not consider the person for guardianship (especially if that person is not a family member).
For those not ready to complete their estate plan, you may use a Guardianship Designation to appoint an individual to be your child’s guardian upon your death.
A Petition for Guardianship can also be used to seek guardianship of a child when the parents have passed away, are incapacitated, or may be unfit to parent.
Next steps
Periodically update your Will following significant life events. You can do minor edits through Codicil. LawDepot offers an easy and free Codicil that allows you to amend your Will.
Over time, your ideal choice for a legal guardian may change. You can always appoint a different guardian if:
- The person no longer wishes to act as a guardian
- Physical or financial reasons prevent the person from performing their duties
- Someone better suited to the task enters your life
It’s also a good idea to update your Will if you have more children. Appointing a legal guardian for your kids helps ensure they receive the love and care they need when you’re not around. By appointing a guardian, you’ve accomplished a crucial task: protecting your children’s future.
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