How Do You Designate a Guardian for Your Children in the Event of the Death of Both You and Your Spouse

Designating a guardian for your children is one of the most important decisions you make in executing a will. In the event that both you and your spouse die, the courts will look to your will to name a guardian to care for your children. You should review your will periodically and update it to reflect changes to your family status and to insure that your choice of guardian is still appropriate.

Your will should identify a guardian for your children under the age of 18. By law, he or she should be of the same religious persuasion as you. Children generally only require a guardian if they are without a competent parent to provide their care, control, and supervision.

A guardian must be an adult and may be a family member or friend. He or she will be responsible for maintaining physical custody of your children and for managing their inheritance from you. In some instances, it may be wise to designate separate guardians. One guardian would be a custodial guardian, or "of the person," and one guardian would be a financial guardian, or "of the estate." Financial guardians are sometimes banks or investment professionals.

It is critical that you communicate your designation to the guardian and discuss the designation periodically. You should not assume that the guardianship will be welcomed by your designee. Instead, you should confirm the willingness of the guardian to serve before naming the guardian.

If your chosen guardian relocates, marries, divorces, has children, or experiences other major life changes, you should reexamine his or her willingness and ability to serve. Before naming or changing the designation of a guardian, discuss your intentions with all concerned. For the sake of your children, and to help insure harmony among friends and family following your death, it may be wise to clearly advise all concerned of your choice of guardian or any changes in your choice of guardian.

Changing the Guardian

You may find it necessary to change your designation of guardian. Is the guardian currently named in your will still willing and able to assume the responsibilities of raising your children? Have circumstances in your life and the current needs and experiences of your children changed such that another person would be better able to step into your role?

As your children grow older, it may be appropriate to discuss guardianship with them. While the final decision must be made by you, your children’s preferences and insight may be of real assistance in making the difficult decision. The wishes of children over the age of 14 will be given some regard by courts in Pennsylvania if guardianship is contested.

Will the Court Overrule Your Choice?

Many primary custodial parents want to insure that their children will stay in the custody of a step-parent or shift to the custody of grandparents, aunts, or uncles. However, if the other natural parent of your children is alive when you die, your will’s guardianship will not necessarily control. Unless the other parent is mentally or physically incapable of caring for the children or is unwilling to do so, most Pennsylvania courts will grant custody to the surviving parent. Only where children have been raised by the named guardian will the guardian be in a position to assert full custody rights.

Even if the guardian is able to prove a parental relationship with the child, it is difficult to overcome the strong legal presumptions about the rights of a natural parent. Nevertheless, the courts do have the power to follow a deceased parent’s wishes if doing so would clearly serve the best interests of the children. Thus, it is important for divorced parents to name guardians. Furthermore, in drafting their wills, parents must always prepare for the possibility that the other natural parent of the children may die first.