Make Your Wishes Known: Who Will Care For My Children If We Both Die?

As parents, we work hard to provide the best possible lives for our children. We can't imagine life without them and don't even want to consider the opposite situation their life without us. Who will take care of them? Who will make decisions regarding their lives and their support? And who will pay for it?

In general, if both parents of a minor child die, any person who is willing to take care of the child can petition the Court to be appointed the "guardian" of the child. The Court will evaluate the person, analyze their ability and capacity to take care of the child, and weigh objections from others, if any. If there are two or more willing persons, the Court will evaluate them all. Once appointed, the "Guardian" will owe strict legal duties to the child, similar to those of a natural parent.

If known, a parent's wishes can have a profound influence on who the Court appoints as guardian. A "Nomination of Guardian" is the legal document parents can use to make such wishes known. It is typically drafted as part of an overall estate plan and specifies, in detail, who the parents would want to take care of their children should they both die. Often of even greater concern, the document can specify who is expressly forbidden to take custody of the children.

Ideally, a guardianship is used in conjunction with a Family Trust. The Trust will hold all the assets from which the Guardian will meet the financial needs of the child. Further, a Nomination of Guardian can, and usually does, state specific desires that a parent may have for (a) the transition of the child and the guardians into each other's lives, (b) the future medical, educational, religious and financial needs of the child, and (c) assuring that resources are available to meet those needs.