Guardianship: What Documentation You Need To Create A Solid Plan

A big estate planning misconception is that to appoint a guardian for your minor children all you need to do is name a guardian in your will. Unfortunately, this is not true.

A guardianship provided for in a Will only takes effect after you die. If you become incapacitated but are still alive, it means nothing and your children can be at the mercy of the foster care system for a long period of time.

So what documentation do you actually need to assure your minor children are cared for in any event you are unable to care for them?


A good, solid guardianship plan will allow you to choose guardians either on a permanent or temporary basis and leave instructions for those guardians so they know exactly what you want them to do and under what circumstances. 

You need to have at least these documents in place at all times if you have minor children:

1. Legal documentation naming a short term or temporary guardian in case you become incapacitated for a short period of time, or in the interim between your death and the time your permanent guardian can arrive. The best option for this guardianship is someone close by that can take immediate custody of your children and keep them out of the court system. Make sure that you talk to these individuals about your plans and that they are willing to serve as temporary guardians. Have their names at the top of a contact list that is available immediately in the event you are not able to communicate. And always make sure they have a copy of the documents naming them as temporary guardians. 

2. Legal documents naming permanent guardians. The same information applies for this document as for temporary guardianship papers.  Make sure you talk to the people you select and that they have copies of these documents to provide to the court. 

3. Make sure you have written instructions for anyone taking care of your children so they know exactly what needs to be done if something happens to you.  Make sure they know who to call.  Even if you’re leaving your kids with the 16 year old kid next door to babysit on Friday night, make sure she or he knows what needs to be done if the worst happens.  And always have written instructions in place for the person or persons you choose as a guardian to tell them how you want your children to be raised. 

4. Always have a Medical Authorization and Power of Attorney for your children, especially if you’re sending them to Grandma’s on their own.  These documents will allow the person taking care of your children in your absence to make medical decisions that could be a matter of life and death. 


The key takeaway? Meet with an estate planning attorney and make sure that your estate plan includes proper guardianship documentation. This assures that your children are taken care of and the court knows exactly what your wishes are and can honor them.

He said/She said will not hold up in court, so if that is the only plan you’ve made for your children if the unthinkable happens, you could be placing them at the mercy of the foster care system without even realizing it.

Our estate planning attorneys can identify what you need to assure that all documentation is in place. Call our team at (626)793-9400.

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