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In the event that a parent becomes incapacitated or dies, it becomes necessary to appoint a guardian for underage children.

If there is another parent that person generally becomes the guardian. However, there may be reasons a parent may not want the other to be guardian.

If there is no other living or acceptable parent, the court will appoint a close relative in such a case to be guardian -- but not necessarily the person you would choose.

Providing now for children gives peace of mind and lets your children know if you if something happens that you cared enough to be sure they were provided for.

One way to plan for your children is to appoint a guardian.

  • A guardian is someone appointed by a court to make personal and/or financial decisions on behalf of a person who is not able to take care of him or her self. A guardian of your child will make parental decisions for the child in your place. A guardian is not a parent.
  • A guardianship will continue until the child becomes a legal adult as defined in your state; a child dies, a judge rules that the child no longer needs a guardian or,  if the guardianship was created to manage the child's assets. the child no longer has any assets.

You can ask the court to appoint a guardian while you are alive or you can name a guardian in your Will.  

  • If you do have a will:
    • If you do name a guardian in your Will, keep in mind that no matter what you say in your Will, the court makes the final decision concerning who the guardian will be. Still, a judge will generally give a great deal of weight to the parent's selection. (When you provide advice about your choice for guardian, also include the name or names of alternatives in case for any reason the first person cannot, or does not, serve.)
    •  If you do not specify the person you would like to be guardian the judge will try to determine what's best for the child by listening to people who are closest to the child. However, those people might not have the child's best interest at heart. As a result, the selected person may not be the best person to care for your children or raise them the way you would have liked.
  • If you do not have a Will, you can write a letter indicating your choice. Store the letter with your important documents. (Note: Everyone should have a valid will. They are generally easy to write, and do not have to be expensive. If necessary, they can even be free. To learn more, click here.)

Before deciding about guardianship, consider the following alternatives for taking care of your children: Foster Care or Adoption.

While you're thinking about this subject, until a guardian is appointed or other arrangements are made, it is advisable to prepare a document which gives someone the authority to make emergency medical decisions for your children if you are unavailable or incapacitated.

For additional information, see:

Also see: How To Choose A Guardian For Your Children

What Does A Guardian Do?

Typically, a guardian takes care of a child's personal needs, including shelter, education and medical care. This type of guardian is called a personal guardian.

A guardian may also manage a child's finances, though sometimes a second person is appointed for this purpose. A person who is only in charge of a child's finances is called a "conservator" or "guardian of the estate."

A guardian who takes care of both personal and financial matters is called a "plenary" guardian. In general, however, when the term "guardian" is used, it applies to both personal and financial matters unless otherwise specified.

For a discussion about when it may be desirable to have a separate entity manage your child's assets, see How To Choose A Guardian For Your Children.

How Long Does A Guardianship Last?

A guardianship will ordinarily last until:

  • A child reaches legal age as defined by the state in which you reside,
  • A child dies, or
  • A judge determines that guardianship is no longer necessary.
  • The child's assets are used up if the guardian controls only your child's finances.
  • A guardian steps down from his or her role. Usually this step requires permission from the court. In this case, a judge will appoint a replacement guardian.

Why Should I Consider Having A Guardian Appointed Now?

If your illness is life-threatening or could result in your being incapacitated, if you petition the court to appoint a guardian now, you will have an opportunity to explain to the court in person why your candidate should be appointed. You'll also get the chance to answer the judge's questions and rebut any objections.

Keep in mind that when a guardian is appointed, that person will replace you with respect to any powers the judge gives to him or her. You lose those rights with respect to your children.

Even though your children could still live with you and you could ask the court to revoke the guardianship, no decisions will be able to be made about the children without the guardian's agreement.

In some states, you can have a guardian selected yet still retain current custody of your children by going to court to have a person named standby guardian. A standby guardian will not become guardian until a specific event occurs -- such as your incapacitation or death.

Another alternative in some states is to designate someone who will become your child's guardian only when there is a need.

How Much Does It Cost To Appoint A Guardian?

If you request a court appointed guardian on your own, your only cost will be the filing fees required by the court, which is usually a small amount of money. If, on the other hand, you use an attorney, you will have the attorney's fees and costs in addition to the costs imposed by the court.

Attorney's fees can range from $100 to $300 or more per hour, with a guardianship case taking anywhere from 5 to 30 or more hours. Some attorneys will agree to a flat or maximum fee, perhaps for as little as $1,000. Court filing and Court Investigator's fees, which vary by county, can also tack on up to another $1,000.

If you can't afford attorney's fees, you can find free or inexpensive legal help through your local county bar association ( offsite link) or the legal department of your local disease specific non-profit organization. Also, even the best attorneys do some work for free if they believe the circumstances warrant. This is called working "pro bono."

Do I Need A Lawyer?

Legally, you do not need an attorney to file a petition for appointment of a guardian.

However, preparing all the court forms and relatives' notices can consume a lot of time and energy. Also, the petition could be contested.

An attorney's assistance is advisable if:

  • Your choice of guardian has a questionable background.
  • Your own mental competence is at issue.
  • You expect your choice of guardian to be contested.
  • You want the convenience of using an attorney

For information about finding a lawyer, click here.

For information about choosing a lawyer among alternatives, click here.