Guardian Angel

Being prepared for your child's future includes choosing a legal guardian. Here's expert advice on finding the right person.


You have been busy preparing for your baby's arrival--you've set up the crib, installed the car seat and researched the benefits of breastfeeding. The last thing on your mind is the possibility that you and your partner might die--or otherwise become unable to care for your baby--and someone else will raise her. As unpleasant as it may be to think about, however, choosing a legal guardian is crucial. "If you don't do it, your child could end up in a foster home," says attorney Robert C. Brandt, a certified family law specialist in Los Angeles. The best time to make the guardianship legal is before your baby is born. To help you navigate the process, here are answers to some of the most common questions parents have about appointing a guardian.

Whom should we choose?

A legal guardian will generally assume the same basic responsibilities as a parent until the child turns 18. Naturally, you'll want to pick someone who will love your child. But love alone is not enough. Other important considerations are age, marital status, income, emotional stability, health, the size of their home, how many children they already have, their religious beliefs, where they live and whether they're in a strong relationship. (Most parents pick a couple, although it is legal to choose a single person.)

Ask yourself: Will they raise my child the way I would want her to be raised? Will they help her maintain ties with our extended family? Can they handle any special needs she may have? Are they willing and able to take on the added responsibility? "It should not be the heartstrings that push you in the direction of who should take care of your child," says Goldie Schon, a Los Angeles attorney specializing in family law.

"We chose my sister, Amy, and her husband because Amy and I have very similar attitudes about child rearing," says Carol Hildebrand, a mother of two in Wellesley, Mass. "There were no drawbacks, other than the fact that she lives in the South. I would prefer that the kids remained New Englanders, but that seemed to be a fairly minor issue in the end."

Kim Nash, a mother of two in Yorktown Heights, N.Y., also selected her sister. "Karen and I are nearly lock step in our views on how to raise happy, smart children, and I know she would--and does--love my girls beyond measure," Nash says. "Plus, she has the financial wherewithal to do it."

How do we tell the people we are considering?

"This is a very serious thing you're asking, and it has to be taken seriously," Schon says. "It should not happen at a cocktail party or a christening or a naming ceremony, when emotions are high." Sit down and talk it through so the potential guardians understand completely what you are asking of them.

Once you've made your choice, inform members of your family. If they disagree with your decision, you can discuss it now and prevent possible legal battles later on.

Schon recommends revisiting the decision every year, or at least every few years, to be sure you and the guardians you've chosen are still comfortable and agreeable with it, particularly if you've had another child. Also update your will or trust every few years, especially if you move to a different state.

How do we make it legal?

Make an appointment with an attorney who specializes in estate planning and trusts. Ask friends for references or contact your state bar association for referrals. You'll work with your attorney to draw up a will or trust (or modify your existing one) to include designation of the guardians you've selected. Appointing a legal guardian costs in the neighborhood of $250 to $350 per hour, for a possible maximum of eight hours, more if someone is contesting the appointment.

You'll also have to make decisions about finances. Will your money, life insurance and property go to the guardians to spend on your child as they see fit, or will you set up a trust and have a different person serve as the trustee of your child's inheritance? Most attorneys recommend a trust because it gives you more control over how your child's inheritance will be spent. For example, a trust allows you to set money aside specifically for college tuition or other priorities. You can even stipulate that you want your child to undergo therapy to help her deal with your death. If you are a single parent, your attorney can tell you what parental or guardianship rights the child's remaining parent may have if you die.

Will our wishes definitely be carried out?

Yes, as long as the guardians don't change their minds and the state approves. "The state has the authority to not follow the parents' wishes," says Sarah Ramsey, director of Syracuse University College of Law's Family Law and Social Policy Center in New York. "But generally, it will approve the choice as long as the parents' wishes are reasonable and the appointment was in the child's best interest." A judge might not sanction your choice if, for example, the prospective guardian has been found guilty of a crime.

What if we didn't appoint a guardian?

Family members or friends would have to petition the state for permission to take your child. If several people wanted guardianship, there could be a complicated dispute over which one receives it, Brandt says. If nobody elected to be the guardian, your child would become a ward of the state.

Picking A Temporary Guardian

If you go out of town and have to leave your child with a sitter, you need to give her permission to consent to medical care should your child become sick or injured. "Physicians are able to provide lifesaving care to anyone without consent," says Sarah Ramsey, director of Syracuse University College of Law's Family Law and Social Policy Center in New York. However, nonemergency care--treatment for an ear infection, for example--requires consent.

A handwritten note is usually fine. Explain that your sitter has permission to obtain medical care for your child, and sign and date the note. Include a copy of your child's health insurance card, his pediatrician's name and phone number, and any other pertinent health information, such as drug allergies.