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Designating a guardian of your child

A question I get fairly often is:   “If I die can I designate someone other than the biological parent to care for my child”.

The short answer: Yes, but it probably won’t matter.

The long answer:  When creating your Last Will and Testament, you will be asked who you want to be the guardian of your child if you die while that child is a minor.   In situations where the parents are married/together, the parents may contemplate the case where they die in the same accident. Often times the parents choose an aunt or uncle or close friend to be the guardian.  Otherwise, it is usually a given that the child would go to the living parent in the case that only one spouse/partner passed away.

Things get a little more dicey when you are divorced or not together with the other parent and you don’t think that parent is fit to take care of the child on his/her own.  You are free to name whoever you want as a guardian in your Last Will and Testament, however, at the end of the day  the law prefers parents to raise their children.  If you die the Probate Court will be made aware of your designation. However, in order to have the Court designate someone other than the parent as a guardian, the person seeking to be the guardian would have to prove that the parent is unfit.  Then, the Court would have to analyze whether placing the child with the want-to-be guardian is in the best interest of the child.   Proving a parent is unfit is a substantial burden to prove.  As you can see, there are several hurdles that must occur before your wishes will be able to be honored.

If you have concerns, it is recommended to name your preferred guardian in your Last Will and Testament because if the other parent is unfit, you will want the Court to know your preferences.

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