United States / Guardianship
What Is a Legal Guardian for a Child in the United States?
In the United States, you can name the person you want to raise your child in your Will. The rules differ from state to state, and a court will usually need to approve your choice.
Key points
Guardianship rules are different in each state.
You can name your preferred guardian in your Will, but a court usually has to approve them.
If your child’s other parent is alive, they will usually keep caring for your child.
Speak to a lawyer in your state if your family situation is complicated.
What is a legal guardian and what are their responsibilities?
A guardian looks after your child and makes decisions about their care, including where they live, go to school and receive medical care.
The exact role depends on your state's laws and the court's order. In some states, caring for your child and managing your child's money are treated as separate roles.
How do I nominate a guardian?
You can name the person you would like to be your child's guardian in your Will.
Naming someone in your Will does not usually make them your child's legal guardian straight away. In many states, a court will need to approve the appointment after you pass away. For example, New York Courts explains that a guardian named in a Will must be approved by a Surrogate's Court judge. California Courts sets out its own guardianship process and forms.
The process varies from state to state, so it is important to check the rules that apply where your child lives.
Your nomination can still be an important way of making your wishes known to the court. For example, New York Courts specifically allows parents to name a guardian for their child in their Will. New York Courts explains the process.
What if my child's other parent is still alive?
If your child's other parent is alive and has legal parental rights, they will usually continue to have rights and responsibilities in relation to your child. Naming another person as guardian in your Will generally does not automatically override those rights.
Things such as existing custody orders, adoption, how your child's parentage was established, or family members living in different states can affect what happens.
If any of these circumstances apply to your family, speak to a lawyer in your state about how they may affect your guardianship arrangements.
Who should I choose as my child's guardian?
Start with someone you trust to care for your child.
You may want to consider:
- their relationship with your child;
- whether your child already knows and feels comfortable with them;
- where they live;
- whether they are willing and able to take on the role;
- their health, family, work and financial situation;
- whether they share your values; and
- whether your child could stay close to their school, family and friends.
Talk to the person before naming them in your Will, so they understand what you are asking of them.
If they live in another state or outside the US, ask a lawyer how this could affect the guardianship process.
Should I name a backup guardian?
Yes. Your first choice may pass away before you, become unable to care for your child, or decide they cannot take on the role when the time comes.
Naming a backup gives the court another person you trust to consider if your first choice cannot act.
Name your guardians in order of preference so your wishes are clear, and make sure the same names appear consistently across your estate planning documents.
What happens if I do not nominate a guardian?
If your child's other parent is alive and has legal parental rights, they will usually continue caring for your child.
If there is no other parent able or entitled to care for your child, a family member or another suitable person may ask the court to appoint a guardian. The court will make its decision based on the child's best interests and the laws of the relevant state.
Without a nomination in your Will, the court may appoint someone other than the person you would have chosen.
Naming a guardian in your Will is therefore an important way to make your wishes known.
What if both parents choose different guardians?
You and your child's other parent do not have to choose the same person.
However, if you name different people, there may be uncertainty about which arrangement should be followed, particularly if both parents pass away. The court may need to consider the circumstances and the wishes expressed by each parent.
Where possible, talk to your child's other parent about your choices and try to plan your Wills together.
If you cannot agree, speak to a lawyer in your state about the best way to document your wishes.
What is the difference between a guardian, executor and trustee?
The same person can take on more than one of these roles, but each has a different job.
Guardian: Looks after your child and makes decisions about their care and upbringing.
Executor: Deals with your estate after you pass away, including collecting your assets, paying debts and distributing your estate according to your Will. Some states use the term "personal representative" for this role.
Trustee: Manages money or property held in trust for someone else, such as a child who is too young to receive their inheritance directly.
Being your child's guardian does not automatically give someone unrestricted access to your child's inheritance. In some states, a separate person may be appointed to manage the child's property or money.
Choosing a separate trustee can provide an additional layer of oversight, while choosing the same person for multiple roles can keep things simpler.
For more information, see our US executor and trustee guide.
Can I appoint a guardian for my pet?
No. Legal guardianship applies to children, not pets.
However, you can ask someone you trust to look after your pet if you pass away, and leave them notes about your pet's routine, food, vet and other needs.
Should I leave a letter of wishes for my child's guardian?
Yes, if you can.
A letter of wishes gives your guardian practical information about your child's life and how you would like them to be raised. You might include:
- your child's daily routine;
- their school and education;
- important family relationships;
- medical or dietary needs;
- hobbies and interests;
- religious, cultural or family traditions; and
- your hopes for their future.
A letter of wishes is generally not legally binding, and the court does not have to follow it.
Instead, it gives your chosen guardian practical guidance about what matters to you and what you would like for your child.
Keep it up to date and make sure your chosen guardian and executors know where to find it.
Planning guardianship for your child
Talk to the person you would choose to care for your child and ask whether they would be willing and able to take on the role.
Then choose a backup guardian in case your first choice cannot act.
Review your choices after a new baby, a move, or a significant change in your guardian's circumstances.
Most importantly, make sure your Will clearly records your wishes and that the people involved know where your estate planning documents are kept.