A guardian is the person parents choose to take care of their minor children if the parents pass away before the children become adults. Naming a guardian is important because it gives parents control of the situation. If parents do not name the guardian, a judge will make the decision without the input of the parents and will usually decide in favor of the next of kin, like a grandparent, aunt, or older sibling.

While appointing the next of kin might make sense to the court, it may not be the preference of the parents.  For example, parents may prefer to name a family friend as a guardian instead of a grandparent who suffers from a mental illness. The court uses its best judgment but does not usually have insight into a lifetime of family issues.  If a parent feels strongly that a specific family member should not be appointed guardian, it is important for them to make their preferences known.

Usually, the court will not consider distant relatives, best friends, or even godparents, unless the parents specifically name the guardian in a testamentary document such as a Will, Living Trust, or in a Designation of Preneed Guardian for Minor Children. Naming a guardian does not guarantee that the court will ultimately appoint that person as the children’s guardian because the court still has discretion in its decision to determine the best interest of the children.

If you have minor children, take control early and name your preferred guardian. If you need assistance in preparing or amending your testamentary documents to include a guardian for your minor children, an experienced attorney at Lavender Greenberg can help.

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