If you landed on this page, then you are serious about planning ahead to protect the people you love. When I talk to parents in my law practice and I ask them what they are most concerned about, nine times out of ten they say they want to make sure their kids are taken care of if something happens to them. As a parent to three little ones, I know I do, too.
In California, you can nominate guardians for your children by signing a written statement naming the individuals you would want to serve as Guardian of the Person (to be in charge of their care and custody) and Guardian of the Estate (to handle any money) of your children, in order of priority, in the event you and the other parent are both incapacitated or die. You must specify the circumstances of effectiveness (incapacity and death). There is no legal requirement that your signature be notarized or witnessed, although it is recommended.
While working with a good estate planning attorney can help avoid some pitfalls in execution, here are some tips for your Guardianship nomination if you want to do this on your own:
Consider both types of guardianship.
There are two types of legal guardianship of minors: guardianship of the person and guardianship of the estate. Usually, what comes to mind is guardianship of the person. A guardian of the person has custody of your child and can make decisions about their day-to-day, education, healthcare, social relationships, etc.
A guardian of the estate manages any money that the child has inherited outright and must provide periodic accountings to the court. Sometimes, a guardian of the estate isn’t needed because there isn’t any money or because all of the child’s assets are inherited through a vehicle like a living trust, but it’s still a good idea to nominate someone for this role just in case.
Provide nominations for both the guardian of the person and guardian of the estate in your declaration. Should the guardian of the person and the guardian of the estate be the same person? Maybe, maybe not. If the first person that comes to mind to raise your child wouldn’t be the best person to manage finances, that’s okay! Pick a different person for that, and they can work together.
Provide alternatives if your first choice can’t serve.
A guardianship is not automatic. In the event a legal guardian of the person or estatate is needed for your child, someone has to actually petition the court to establish the guardianship and be appointed as guardian. Your written declaration will be submitted to the court as part of this proceeding. If for whatever reason your first choice person isn’t able to accept the responsibility to serve as your child’s guardian, you’ll want to have a back-up or two (or three) just in case. I recommend providing a list of single individuals in order of priority. If you want to name couples or individuals to serve jointly, I recommend getting professional help to ensure you think through all the possible scenarios.
Expressly exclude someone you would not want to serve.
If it seems likely that a close family member (the child’s grandparent, or a sibling) will try to oppose your wishes and petition for guardianship and you would NOT want them to be the one raising your children, you should document your thoughts on this and your reasoning. You can make a statement directly in your guardianship nomination document (which will become public record if submitted with the petition), or you can write a separate letter and leave it with someone you trust to bring it to light if it’s needed. If you have a situation like this, I highly recommend working with an estate planning attorney to make sure things are documented as well as possible.
Have both parents agree and sign, if possible.
If you and the other parent are in the same household, or if you share joint custody amicably, you can (and should) make a joint declaration regarding your nominations for legal guardian in the event both of you are unable to care for your child. If you are a single parent or the other parent has restricted custody or is not in the picture or something along those lines, you’ll want to talk to an estate planning lawyer about how to best draft your nomination to either (a) name the other parent as your first choice or (b) specifically exclude them and explain why you believe they are unfit. If the other parent contests a petition for guardianship, at least the court will have evidence of your feelings on the matter when they make their decision.
If you’d like more guidance on how to choose and nominate guardians for your kids in California, I’ve created a downloadable PDF workbook guide (including a basic template declaration to complete and sign with confidence!) that guides you through this process, step-by-step, with examples, so you can complete this on your own. You can learn more about the guide on my law firm website or click the link below.
At any time, you can also book a call to explore working with me one-on-one as a client of my law firm, where we cover guardianship nominations (both long-term and emergency) as part of your comprehensive estate plan.
