Although every parent plans to raise their children until they're ready to live on their own, certain events like death or an illness may change that. Designating legal guardianship for you minor children is one way to eliminate the worry associated with answering the question of who may raise your children after you die. Legal guardianship is the process of establishing who takes care of your minor children in any circumstances where you're not able to do so. While you're alive, the legal guardianship isn't binding. Thus, you can change the guardianship as needed.
Discuss giving legal guardianship with candidates. Talk with the individual or individuals to ensure they accept the responsibility of raising your children.
Choose the legal guardian. You should look for candidates you can trust such as a family friend or relative.
Decide how to name the legal guardian. You have two options: a will or standby guardianship. In a will you can designate a legal guardian using a testamentary guardianship. A standby guardianship requires filing a petition or providing a written designation.
Complete the legal document.
- If you choose to name a legal guardian in your will, a probate judge needs to grant your request.
- Since your will must go through probate, leave the probate judge presiding over your estate a written explanation to grant your guardianship request. In the letter, indicate why the guardian candidate is the best person to raise your children. Explain why the individual can provide stability, care and the relationship that exists between the person and children.
- A judge may choose the surviving parent to raise the minor children after you die. Thus, you may want to forego indicating a legal guardian in your will. A testamentary guardianship only goes into effect after the sole remaining parent dies.
- Also, a probate judge may give your children to the other parent instead of your chosen guardian because it's in the best interest of the child. If you don't think the other parent is fit to raise your children then write a letter explaining your desire not to have the other parent designated as legal guardian.
- Check with your state law on standby guardianship. If your state requires you to submit a written designation, you must have two witnesses sign the document. Also, in some states you and the other parent may have to appoint a legal guardian.
- A standby guardianship is activated by a triggering event such as an illness or your death. After the triggering event, the guardian assumes your parenting role.
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