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The best way to appoint a guardian for my children in the case of mine and my husbands death/incapacity?

Lake City, FL |

I've been researching for hours now, but everything is so confusing. My husband and I just want to make sure that our children are taken care of, but we have problems with his side of the family. We would like to appoint guardians for our children, and they have already agreed that they would do it, but from what I've read my husbands parents could petition also and potentially get the children. Is there any way to make sure that the children go to the ones we want them to go to? Also, we have a large amount in life insurance and retirement, plus our belongings. What would be the best way to make sure that our guardians we chose can use these resources to care for the children? Any information would be great! Thank you.

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Attorney answers 3


You really have two separate issues: the guardianship of your children, and the handling of money after death. Your best best is to meet with a local lawyer who could discuss this with you in depth. The reason it is confusing is that there are a lot of factors to consider. Find a lawyer who practices in this area exclusively and ask that person for advice. The advice I am about to give you is what I would speak with clients in Illinois about. A Florida lawyer may hit on different issues.

First, guardianship after death is a matter of judicial pleasure. Name your guardians in a will and in a designation of stanby guardianship. Express why you believe that having a particular person is in the best interest of the children. Here in Illinois, that is the standard for guardianship and written statements by the parents of why a situation is in the children's best interest carry great weight. Make sure that these statements are well written and not inflamatory to a person you do not want as guardian. If making a negative statement (I do not want Tom to serve as guardian) put the matter in a simple and straightforward manner. For example, you could state that after careful consideration, you do not believe it is in the best interest of the children to reside with Tom.

Consider using a trust to hold assets or to be the named beneficiary of assets. The trust could specify who is in control of the monies for children if you die when they are minors. It could have principal payout provisions based on certain events (college graduation or marriage) or at certain ages (as the children age) with the based funds used to provide money for day to day living expenses. You could also specify that the funds could be used to defend against certain people as guardian. If you do not believe the guardian would be a good financial manager, use a different person or corporate trustee to be in charge of the monies.

Separate issues exist with retirement plans. Be sure to identify those assets specifically to your attorney.

Hope this helps! For more information, see my legal guide, Estate Planning in the Summer of Your Life.


You and your husband (hereinafter collectively referred to as "you") should prepare last wills and testaments ("wills") in which you will name a guardian in the case where the survivor of you dies survived by a minor child as well as spell out how your assets are to be managed for the benefit of your children (for example, the surviving spouse's will may establish a testamentary trust to hold your assets for the benefit of your children who may receive income and principal in the trustee's discretion during the trust term). You may decide to establish a revocable trust during your lives to transfer assets to (but not your Florida residence while you have a minor child because of the respective prohibition under Florida homestead law) for probate avoidance purposes. Along with wills, you should prepare financial durable powers of attorneys and designations of health care surrogates. You may decide to also prepare Health Insurance Portability and Accountabilty Act (HIPAA) releases and living wills.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.
Circular 230 Disclaimer: Any information in this answer may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.


You and your husband should establish a Will or Revocable Trust to set forth your wishes for your children.

Your Will can name your choice for guardianship for your children, to which the Court will generally give deference. However, as the other author notes, the Guardianship Court will ultimately determine who will be named as your children's guardian.

Your Will or Trust can establish trust terms with a trustee you name to manage your financial resources for your children. Generally, trusts are not supervised by a Court, although a Court can become involved if necessary.