What If You and Your Child’s Other Parent Cannot Agree on a Guardian?

When engaging in estate planning for any parent whose child is not yet an adult, there is always one very important decision to make: who would be the guardian of their child(ren) if both parents pass away?  Like many issues in estate planning, it is an almost unimaginable thought that such a tragedy could occur for a child.  But if we did not plan for the worst when doing estate planning, it would not be providing your family the protection it deserves.

If a child would ever lose both their parents before they are an adult, the state would have to appoint a person to be in charge of your child’s best interest and who could legally act as the child’s parent (for example to have authority to register the child for school or take the child to a doctor).  This person is what is referred to as a guardian, and can only be appointed by a Judge after a very thorough vetting process and Court proceedings all centered on the standard of what is in the best interest of that child.  

A common misconception is that there is some automatic and informal process whereby, in the event of the death of both parents, the child’s pre-determined “relative x” would automatically become the child’s guardian.  Again, this is simply incorrect as stated above, even if you list a preferred guardian in your Will.  The only way that your child will have a guardian appointed is after they go through the guardianship process in Court.  Nevertheless, it is not as though a Judge would ignore the wishes of the deceased parent.  The wishes of the deceased parent would be overwhelmingly strong evidence to any Judge who was trying to decide what person would be best to care for this child going forward.  For that reason, it is imperative for any parent to list their preferred choice of guardians in their Will the event of their death.

When I am working with estate planning clients and helping them consider who should be listed as their child’s preferred guardian, things can get complicated quickly.  It can be difficult for any couple to agree on who would be the appropriate guardian for their child, and it is something that most people try not to even imagine.  Common examples of concern quickly become issues such as which set of grandparents should be listed first?  Should we make both of our siblings act as co-guardian?  Do we still feel comfortable with your father as guardian if your mother is no longer here, or vice versa?  

The best approach is to plan for the immediate.  I always remind clients that they should only try to plan ahead for the next few years because they can always revise that choice in their Will as time goes by.  Sometimes, there is an obvious choice of who would take care of toddlers; but maybe that same person would not be such a great choice with a teenager.  It’s also important to take into consideration a list of backup guardians.  You can have as long of a succession line for your preferred guardian in your Will as you like to provide you the most comfort possible.  By taking these steps, and understanding that there is an entire judicial process set up to protect your children, you can enjoy peace of mind knowing you have done the most you can to protect your family.

If we can be of any assistance or answer any questions while you make decisions about yourself and your family, please give us a call at 717-845-5390 or click the link here and we will contact you.


jeffrey bellomo

Jeffrey R. Bellomo, Esquire is a Certified Elder Law Attorney by the National Elder Law Foundation under authorization of the Pennsylvania Supreme Court. As the owner of Bellomo & Associates, LLC he advises families about the legal challenges facing them today. He counsels clients and provides solutions on: Asset Protection, Special Needs Trusts, Wills, Trust Design, Guardianships, Medicaid and Estate Planning & Administration. His mission is to provide professional caring service to all his clients.

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