Guardians/Conservators

After you are gone there may be minor children or other dependents, such as disabled or cognitively impaired adults, that still need to be cared for and supervised. To do this you will need to choose a legal guardian for them and include this in your will. You may choose multiple guardians, such as a married couple, or different guardians for each child.

In some states they can also be known as conservators, but a conservator is technically the person who manages your children’s finances.

You can also name a guardian for your pet in your will, but, since pets can’t own property, you can’t leave them gifts in your will. You must either set up a pet trust fund or leave any gifts that would be used by your pet to the guardian.

Choosing a Guardian

This guardian chosen must be a person(s) at least 18 years old who can make decisions for your dependents (generally referred to as the “ward”) when they are too young or can’t make decisions for themselves. Guardianship laws can vary by state.

Because of this high level of responsibility, choose guardians carefully. You should make this decision with your spouse/partner, if possible, and look for the qualities that are most important to you. You may want to write them down or create a checklist to make it easier to assess these qualities in your choices.

It may be difficult to make a decision, so take your time, if you can, to think about it. Even if you and your spouse/partner disagree or you are torn between potential guardians, talk it over and use your intuition to decide. Talking to the potential candidates can also help you finalize the decision.

Once you have chosen your candidate discuss this with them in detail before designating them in your will.

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Schedule time to meet with them privately to make your request.

Once you have decided to go ahead with a person or couple, explain what the process is like, including:

    • under what circumstances they would become guardians
    • essential details, such as how you want your children to be brought up 
    • practical information, such as financial support and your children’s activities

There is no need to cover everything right away, you can take additional time to discuss the details of their guardianship.

Put your thoughts into writing so the guardian will know exactly what you want for your child, including any values you would want them to stand for.

Anyone not chosen can be listed as back-up or successors in that section/article of your will. A successor may be needed if the guardian becomes incapacitated or is replaced by the court for other reasons. Without successors the court will assign a guardian based on that state’s guidelines, usually a family member.

Addenda to the will, such as power of attorney or a medical directive are ways to direct the court on how to handle matters if you become incapacitated and your dependents-appointed guardian becomes physically or mentally incapacitated without a successor.

Your Children’s Guardian

This may be the most important decision in your will if you have children. This guardian is the person(s) who will parent them and bring them up until they reach the age of majority, usually 18 years old. You may choose multiple guardians, such as a married couple, or different guardians for each child.

Here is a brief list of some of the factors that you and your spouse/partner may want to consider when you make your decision about a guardian.

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The child/children should help choose and/or agree with the choice of their guardian.

How important is it for the guardian to be a family member.

They should have qualities to assure the well-being of your child/children.

  • Your children should know, like, and trust them.
  • They must be caring, reliable, responsible, trustworthy, patient, and positive.
  • They must have good parenting skills.
  • Their views on discipline should be similar to yours.
  • They should not have any habits that would impact your children’s care and health, such as smoking, drinking, gambling, or other addictive behaviors.

Would they accept being appointed as guardian?

They must be willing and able to fully commit to the task of raising your child/children and be physically and emotionally able to adequately care for them.

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  • They must be able to maintain a healthy lifestyle for your children.
  • It is best if they can be relied on to be at home every night, rather than out-of-town working a lot.
  • They should be capable of providing transport for your children to school, other activities, and visits to friends and family.

Is the guardian’s residence an appropriate place to live?

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  • The level of comfort and amount of space should be adequate for your child/children.
  • Ideally, the distance from your children’s current residence should not result in the need to change schools or shift the location of their activities.
  • Your children need to be close enough to their relatives and friends to see them often.

The family and social situation should be appropriate and nurturing.

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  • Your child/children should comfortably fit into their family, even if the choice has children.
  • The family relationships and marriage should be stable.
  • There should be ample support systems.

Depending on your assets you may need to consider their financial situation, such as if they:

  • can raise your children with their current income and assets if you can’t leave them enough
  • own a home and vehicle
  • have a stable job and income
  • are responsible with money and budgeting, so could also serve as the conservator (financial manager)
  • have too much debt, especially if they will have to use their own money to take care of your children

You may also want to consider:

  • their spiritual/religious beliefs, educational, social/economical, or political views, or interests and hobbies
  • the effect of your choice on the rest of your family

Guardianship of Incapacitated or Disabled Persons

Mental and physical disability or incapacity can involve conditions that may limit your dependent’s ability to take care of themselves, express themselves verbally, earn a living, and live independently. If the disability is severe enough to necessitate long-term care, treatments, and other services, you should arrange for a guardian and list them in your will. The qualities of your choice are similar to those of minor children.

A guardianship for physically or mentally disabled or incapacitated persons assures they will have adequate care, but also to have someone to facilitate their independence and self-reliance.

  • The desires of your dependent should be the primary consideration.
  • They should be allowed to do as much of their own caregiving as is physically and mentally possible.
  • The guardianship should involve just as much as is needed for your dependent to exercise as much control over their lives as possible while maintaining dignity, health, living standard, and self-reliance.

Tasks of the Guardian

Their legal guardian will have a broad range of responsibilities, similar to those of a parent or caretaker. You may include whatever level of detail you want about how you wish each of these responsibilities to be carried out. However it is better to include them in an addenda to the will, such as power of attorney or a medical directive.

Here is a list of some of the major tasks of a guardian.

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They will have physical custody of your minor child/children, and perhaps your dependent, and act as their primary caretaker.

  • They must fulfill duties in the same way as you and your spouse/partner would have.
  • These duties include providing food, clothing, and shelter, maintaining their physical and emotional health, and protecting them from safety hazards.

To remain personally acquainted with your child/children or dependent and maintain enough contact to know their abilities, limitations, needs, and opportunities, and physical and mental health.

To make legal decisions on behalf of your child/children or dependent, such as where to live, where to go to school, if they can play sports, what medical care they receive, etc.

Using the inherited money and assets solely for the children’s or dependent’s benefit. This includes:

  • paying for current needs for support, care, education, entertainment, and any other duties associated with their welfare
  • paying all expenses to maintain any property they inherited, such as taxes, mortgages, and insurance
  • preparing and filing income tax returns
  • annual detailing of how the minor’s assets have been invested and spent, including any that have been bought or sold
  • possibly getting court approval before carrying out some of their duties and responsibilities. For example, an approval to sell a minor’s home or other property.

Using their own assets, if necessary, to raise your children or care for your dependent.

Taking reasonable care of your children’s or dependent’s personal and property interests.

Accepting full liability for the child’s or dependent’s actions

If necessary they can also apply for public assistance benefits or public housing and bring a lawsuit on behalf of their ward if needed

If specifically designated, their guardian may also be responsible for handling the finances and property of your child/children/dependent.

It is also possible to designate another individual, called the conservator, to perform this function.

  • This may include investing, buying or selling assets, which also require annual detailing.
  • It may be necessary to get court approval before carrying out some of their duties and responsibilities. For example, an approval to sell a minor’s home or other property.
  • It is also possible to designate another individual, called the conservator, to perform this function. If the assets were in a trust, this would be the trustee.

Because any will goes through the probate process, the guardian may also need to provide an accounting of the children’s or dependents’s care by submitting updates to this court. 

These court updates should:

  • describe their living situation, current mental and physical health based upon medical examinations and official records
  • provide a list of services they are receiving
  • list services given by the guardian
  • give an accounting of finances and remaining monetary assets
  • include any other information necessary for the court to assess their status and the guardian’s performance

When you have a child with special needs, an aging parent you are caring for, or dependents that are chronically ill, or physically or mentally incapacitated, it may be best to create a special-needs trust. 

These can provide more details that can better direct the court on how to handle their care.

Ending a Guardianship

The guardianship typically ends when a child reaches the age of majority, 18 years old in most states, although the guardianship may be continued or reinstated by the court if there is evidence that your child still requires supervision. Guardianships may also be terminated if your child marries or a judge determines that it is no longer necessary or beneficial for your child.

They are automatically terminated if your child dies. In addition, the guardianship may be terminated if the initial guardian did not adequately perform their duties for your child. A new guardian will be appointed, usually your back-up choice.