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Mar 25

Our San Jose Estate Planning Lawyer on Selecting Guardians

San Jose Estate Planning LawyerOur San Jose estate planning lawyer understands that choosing a guardian can be parents’ most difficult decision in drafting a will. Many parents delay because they have so much difficulty in selecting guardians from their relatives, friends, and associates, but there are solutions that can facilitate the difficulties.


If the difficulty is that the first choice for guardian is considerably older than the parents, who worry that the one chosen for the children may not survive their minority, the solution to this concern is to select someone provisionally for the time being and review the situation in a few years. In this solution, the focus is on child care over the next several years in the knowledge that the selection can change as the child and the guardian grow older.

Reaction of the Family

If the difficulty is that the family of either parent would resent the selection, one solution is to explain the reasons for it in writing. The primary purpose must be the welfare of the child, and the choice of guardian after the testators’ are gone should be whoever would serve that purpose best. In any event, legal challenges to testamentary provisions for guardianship are always unlikely and never successful unless challengers can prove compelling cause to set the selection of guardian aside. Again, an explanation of the reasoning for the choice can discourage unnecessary conflict, calm tensions, and settle any unlikely legal challenge.

Reaction of the Children

Some parents worry that their children would be unhappy with the choice. In this case, the solution is to discuss it with them, especially if they are already adolescents. Minor children of at least 12 years old may request in probate proceedings substitution of guardians for those proposed by their parents. Courts consider such requests together with other factors.

Financial Incompetence

If the parents worry whether their first choice as guardian would be able to manage finances for their children competently, our San Jose estate planning lawyer says the solution may be to nominate someone else for that specific purpose. In that scenario, while the financial guardian manages money for the children, the general guardian sees to their care and happiness in all respects other than the unduly burdensome distraction of monetary duties.

Guardian’s Spouse

If the parents dislike or distrust the spouse of their first choice, they can nominate the individual as guardian and explicitly not the couple. Then if, after the parents are gone, the couple separates or divorces, the children would be able to stay with their parents’ first choice as guardian and avoid complications from the separation.

Remote Location

If the first choice for guardian lives in a distant state, the solution may be to nominate two guardians, one temporary and one permanent. The law does not require guardians to live nearby, but far-away, nonresident guardians may have to post money bonds as assurances and guarantees that they can and shall discharge their guardianship duties faithfully. Moreover, they may need to request removal of the guardianship proceedings to their domiciliary states at additional legal fees and court costs. For these reasons, the San Jose estate planning lawyer advises parents who want someone distant as a guardian to nominate a temporary local guardian to look after the children until the permanent guardian is in position to do it.

Mixed Families

Some parents with children from previous marriages wonder and worry about how a guardian could care for all of them fully and effectively. Their solution may be to provide separate guardians for each child or group of children. Mixed families, not uncommon in these times, can complicate guardianship provisions. Some parents provide a guardian for the children of each marriage. Others attempt to keep all their children together with a single guardian. But guardianship is no issue at all for a child with a surviving parent, a situation more likely than not when the parents do not live or travel together.

Unfit Former Spouses

If the parents feel strongly that a former spouse never should have custody of their children, they can provide for a guardian and state in their will reasons why the ex-spouse should not have custody. Divorced parents are often unhappy about the prospect after they’re gone of their surviving former spouses gaining custody of their children, the usual course of events unless the ex is obviously unfit. To prevent this eventuality, they can explain in the will or in another document why it should not happen. They should include evidence of unfitness as a custodial parent for the guardian to use in court proceedings.

Consult a San Jose Estate Planning Lawyer

Perhaps the best way to appoint guardians legally is by means of a will. With help from a San Jose estate planning lawyer, there is no problem in identifying an appropriate guardian and in making any appropriate arrangements for the care of a child. As guides to guardianship, wills can provide great detail about how children should be raised. Call the Freed Law Firm at 831-661-0300 to schedule a consultation with our San Jose estate planning lawyer and the proposed guardian to discuss such details.