Appointing a Guardian

Parents with young children should always consider who will look after their children if they are unable to do so themselves and appoint a Guardian for their children to ensure that they are looked after by a suitable person in the event of their death or serious illness.

Choosing a Guardian

It is legally possible to appoint more than one Guardian but this can lead to problems if they disagree. Therefore it is only if you know of a stable couple who would be willing to look after your child that you should name them both. It may often be best to appoint just one Guardian and name another in case your first choice is unable.

When choosing guardians consider the following:

  • Is the prospective guardian old enough? (You must choose an adult over 18
  • Does the prospective guardian have a genuine concern for your children’s welfare?
  • Is the prospective guardian physically able to handle the job
  •  Does he or she have the time?
  •  Does he or she have children of an age close to that of your children?
  • Can you provide enough assets to raise the children? If not, can your prospective guardian afford to bring them up?
  • Does the prospective guardian share your moral beliefs?
  • Would your children have to move?

Always talk to your proposed Guardian first and discuss with them their appointment. It is important that they are willing and enthusiastic to act.

You must agree who is to be appointed as guardian with the other parent.  If you don’t agree on whom to name there could be a court fight if both of you die at the same time. while the child is still a minor. A judge would then have to make a choice based on the evidence of what’s in the best interests of your child.

Writing a Letter of Explanation

Leaving a written explanation as to who and why you have appointed a guardian  is important especially if you think that a judge could have reason to question your choice.

Judges are required to act in the child’s best interests, so in your letter explain why your choice is best for your child. Here are some issues the judge will consider:
• the child’s preference, to the extent it can be ascertained
• who will provide the greatest stability and continuity of care
• who will best meet the child’s needs
• the relationships between the child and the adults being considered for guardian, and
• the moral fitness and conduct of the proposed guardians.

If you don’t want the other parent to raise your child it is also important to leave a letter explaining why. A judge will grant care to a child’s surviving parent unless that parent has legally abandoned the child or is clearly unfit. In most cases, it is difficult to prove that a parent is unfit, unless he or she has serious problems such as chronic drug or alcohol abuse, mental illness, or a history of child abuse.
If you honestly believe the other parent is incapable of caring for your children properly, or simply won’t assume the responsibility, you should write a letter explaining why.

If you’re divorced, you may be unhappy with the idea that should you die first, your ex-spouse would get custody of your children. That’s the reality, though, unless the parent is clearly unfit.
If you really don’t want your ex-spouse to take custody of your children, explain why in your will or in a letter. Include court records, police reports, or any other evidence of your ex’s unsuitability as a custodial parent. Give that letter to your first choice for a guardian, to be used as evidence of your wishes in the case of a court proceeding.


Focus on who could take care of your children in the next three to five years. You can always make changes and appoint new guardians after this time. This is particularly important If your first choice is older than you. They might not be able or willing to care for children in ten years’ time.
Your first loyalty is to your children, and you should always make the choices that you think will serve them best. You should also know that a court challenge to your choice of guardian is unlikely — and unlikely to succeed. A family member who wanted to overturn your choice of guardian would have to prove to a judge that there was a very good reason — say, a child abuse conviction — to set your choice aside.

If you worry that your children won’t like your choices talk it over with them.
Children 14 or older may ask the court for a different guardian than the one nominated by their parents. The judge will take their wishes into account along with other factors.

If the person you want to raise your children is not good with finances, that is easily fixed. Just name someone else to manage your children’s money, and leave the guardian with only the job of making sure your child grows up well cared for and as happy as possible.

If don’t like your intended guardians  spouse just appoint the individual, not the couple. if the couple divorce, your kids would stay with the person you intend.

If your first choice lives far away you can appoint a temporary guardian in addition to a permanent one. Nominate someone local who could serve as a temporary guardian and take care of your children until your permanent guardians are able to make necessary arrangements.

If you have more than one child it is quite possible to name different guardians for each.

It is important to focus on the needs of each child.  Some parents name different guardians for the children of different marriages. Others make a plan that would keep all the children together. Remember that guardianship doesn’t come into play at all if a child has a surviving parent, and that’s more likely when their parents are not living or traveling together.

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Hopefully this has proved useful. However, the information provided can never be a substitute for advice from an experienced lawyer. If you are in anyway unsure of what you need to do in your individual case our lawyers are available to help. 

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