Estate Planning

Choosing a Legal Guardian for Minor Children

When you’re preparing an Estate Plan with children, choosing a potential Guardian for your kids is beyond important. Here are 5 things to consider when picking a potential caregiver:


Your potential Guardian should not just have the right temperament, but a track record of financial and personal stability. Spotty employment and trouble managing money should be red flags.


Ideally, the Guardian you choose should live – or commit to living – in an area near your children’s other relatives. This may not always be possible, but it should factor into your decision.

Commitment to faith

If you’ve raised your children in a specific religion, you’ll probably want your Guardian to take them to a church, temple, mosque or other faith-based institution on a regular basis.

Parenting style

If time-outs are your go-to punishment and your potential Guardian thinks a good spanking is more than okay, your differing methods of raising children may be too much to overcome.

Health / Age

From toddlers to teens, taking care of kids can be physically tough. Your potential Guardian should be healthy enough to withstand the rigors of parenting, and young enough to raise your kids into adulthood.

What is the difference between a permanent and temporary Guardian?

If you have minor children you should consider choosing both temporary and permanent Guardian(s).

A temporary Guardian is usually someone who lives nearby. They can spring into action if you are immediately unavailable. Imagine, for example, the following possible scenario: you go out for dinner but don’t make it back home due to a car accident. You may have already named a permanent Guardian for your kids, but what happens to your kids that night? Or, for that matter, what happens to them until the court hearing to name the permanent Guardian? A temporary Guardian is chosen to minimize disruption in your children’s lives, and keep them out of child protective services until a long-term Guardian can be named.

A permanent Guardian is someone that is appointed by a court to care for your children on a long-term basis. This person may live further away, but they have been chosen (by you and/or just the state) as the individual(s) who are best able to raise your kids.

Should You Choose Overseas Guardians For Kids?

When it comes to estate planning with minor kids, there’s a lot of concerns, obviously. This is the most important thing and reason why you probably even decided to do your estate planning right now, and for good reason.

If you are not around, there’s nothing more important than taking care of your kids. You want to make sure that the decision about who will be your kids’ guardians is not something you take lightly, and that you be very careful and understand all of the particular details that would be involved in your kids having to go live with someone else in a worst-case scenario. I’d like to discuss the question about guardians by trying to be a little bit practical about what would occur.

Let’s take, for example, you don’t make it home tonight, it doesn’t mean you’ve passed away. You could have been a car accident and just ended up in a hospital, but you are not making it home tonight. In that situation, you may not really be as concerned about who are going to be permanent guardians. You’re more concerned about temporary guardians who can take care of your kids for a short-term duration. In that situation, you might be more inclined, and it would be a really good idea, to, obviously, think about naming someone that’s within a close vicinity, whether that’s a family relative, a friend, a neighbor but someone who you give permission for your kids to be with for a short-term.

Having said that, most of the time, you’re thinking about the really important question about who are going to be the long-term guardians. When you’re thinking about long-term guardians, a very often heard question in our firm is, “Can I name someone that is overseas?” The question is simple. Yes, you can. Practically speaking, though, that’s a different story because you need to think about the fact that your kids will most likely live overseas. If you are okay with that because the specific guardian is more important than where you live, that’s fine. The other practical thing that you need to think about is that the proceedings to name the permanent guardian are going to happen in your home state.

If you live in California, and you pass away in California, and in your will, you’ve named a permanent guardian that resides overseas, that can work, but the proceeding would occur in California. Those permanent guardians very likely will have to deal with proceedings here, and may need to take trips here and deal with that here. Of course, you can hire a local attorney that would handle most of the effort, but that’s how it would occur. You just need to think about what’s important for your kids, practically, how it would work.

I promised that I would give my opinion, and my opinion, ultimately, is that it depends on the person, and it depends on your children. If your kids are resilient and you don’t mind if they’re over 10, 12 years old, and you do mind for them to change their environment, at that point, maybe you wouldn’t want them to go live overseas. If your kids are still really young, if they’re a toddler, at that stage, maybe it isn’t as important if they end up moving overseas. It’s a question that you may wish to revisit as your kids get older, and parents often do that.

They’ll name one set of guardians and then call us back, and a few years later, decide to name someone else, specifically for this reason, really, because they decided, “You know what? It was okay for them to go live overseas in a worst-case scenario as a toddler, but now that they’ve gotten older, I don’t want to change their environment on them. It’s more important that they stay where they are, and I am going to change the order of guardians.” That’s really the answer. One, depends on you, but it’s certainly not precluded.

When it comes to trustees, I’ll say, when it comes to that question, who manages your assets, and this is a little off topic, but in that situation, our opinion is actually that you do want to name someone that’s local and you don’t want to name someone one that’s overseas. You’re, again, not precluded from doing so, but it’s probably a good idea to name someone that is local. Hopefully, that answers your question about whether you should name an overseas guardian for your minor kids, but we’re always happy to answer your questions, so feel free to give us a call at anytime.


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