What Legal Documents Would I Need To Establish Child Custody If Their Parents Were to Die?

Most parents have a plan in place for seeing that their children are cared for if they die.

What is often overlooked is what will happen to their children should they become temporarily incapable of caring for them and only need someone to step in and take over parental duties for a short time.

Short term care, or Temporary Guardianship, is especially important for a number of reasons.  One situation that this is important for is if you are a single parent and your child’s other parent is not in the picture or is unfit to take over their care.

Or if either or both parents travel a lot, and the other one works full time.  If something happens, who will temporarily have the ability, rights, and knowledge to make decisions on your children’s behalf?

Having a temporary guardianship plan in place before it is needed will save time and upset should a situation arise in which it is required.

Read on to discover what temporary guardianship is, how to determine who you want to have this guardianship, and why it may be necessary.

What Is Temporary Guardianship?

Think of temporary guardianship as substitute parenting. Most temporary guardianships last up to six months, but they vary depending on the time you and the guardian agree upon. Temporary Guardianship is not signing over your child permanently.

The temporary guardian will have all the decision-making power you currently have as a parent. They will decide what school your child attends, take them to the doctor, and make all other significant decisions.

You can limit what decisions they can make by listing restrictions in the paperwork, but doing so may not be logical if you are nowhere around to make those decisions.

Why Might I Need to Appoint a Temporary Guardian?

The most often stated reason for needing a temporary guardian is when neither parent is physically able to care for the child. A temporary guardianship may happen due to something like a car accident or illness that requires an extended hospital stay. These types of contingencies can be especially necessary for single parents.

Single parents who cannot depend on the child’s other parent to be there are most likely to need to find a safe place for their child during these times. If there is no plan made, the state may step in and assign someone the duty of guardianship. This guardian could be a family member that you do not want to raise your children or a foster home where they will be with strangers. Essentially, if you don’t make a plan ahead of time, your children’s fate, as far as guardianship, is left up to a court.

Death or permanent incapacitation isn’t the only case that might warrant a temporary guardianship arrangement.  For instance, some parents find themselves unable to care for their child due to situations involving mental health issues or a drug or alcohol addiction – they may need a temporary break to enter rehab or another hospital.  Or, a single parent may find themself out of work and being evicted – rather than face having their children live homeless on the streets or go hungry they ay opt to assign temporary guardianship to a more stable friend or family member.  In these cases, they will need to make it very clear about how long the guardianship will last and what the terms of reclaiming custody involve.

Here’s a breakdown/summary of when/why you might need to consider temporary guardianship plans in your estate plan.

Three Reasons You Need to Consider Temporary Guardianship

Incapacitation: If you become incapacitated and unable to care for your children, you want to have someone you trust to make decisions for them.

Substitution: If you need to be out of town and away for your children for any reason, you want to have someone there to care for your children.

Emergency:  If there is an emergency that causes you unable to care for your children and there was no time to appoint a permanent guardian, then a temporary guardian will be appointed.   This is also known as an emergency guardian.  If you have not specifically set up a temporary guardian for your children, they could end up temporarily in the care of strangers, or family members that you would not want them with. 

The Role of a Temporary Guardian

In a temporary guardianship, the person named:

  • Has legal custody of the child or children
  • Has the right to make any medical decisions for the child or children
  • Has the right to make any educational decisions for the child or children
  • Has the right to make any financial decisions for the child or children
  • Is legally responsible for the child or children

The Length of Time a Temporary Guardianship Lasts

A temporary guardianship typically lasts up to 60 days.  State statutes will set the time period if it is a court-ordered guardianship.  The length can vary depending on each case.

If the temporary guardianship is set up in a document such as a living will or through a power of attorney, then it will last for the amount of time outlined in the document.  The amount of time should be reasonable and realistic in case of any changes.

A temporary guardianship only lasts until its purpose is fulfilled.  For example, if you appoint a temporary guardian for your children while you are on a business trip, then when you return, the temporary guardianship will end.

How to Arrange a Temporary Guardianship

There are a few ways to arrange a temporary guardianship for your children.  Each one depends on the reason you need to set one up.

  • Living Will or Power of Attorney: If you are setting up a temporary guardianship to become effective if you become incapacitated or deceased, you want to name the guardian in your living will or on your power of attorney form. This person will be the guardian of your children until you are no longer incapacitated or until a permanent guardian is named.  You may also put a period for which you want a temporary guardianship in place.
  • While you are out of town: If you need to set up temporary guardianship because you will be out of the state or country, you can name a guardian to care for your children in your absence. This can be done simply by writing a guardianship letter or filling out a guardianship form.  In the letter you want to be sure to include the name of the guardian, the reason they are the guardian, the dates the temporary guardianship is in effect, and what decisions the guardian is allowed to make for your children.

What Process Is Required to Obtain Permanent Guardianship?

While the process for obtaining permanent guardianship will vary from state to state, there are some basic steps that the process is likely to entail no matter the jurisdiction where guardianship is being filed for. 

  • You will need to file a petition to obtain legal guardianship of the individual and pay any required fees for the process.
  • You may need to submit to visits, interviews, or background checks from the court if deemed necessary to determine if the action is in the best interest of the individual. 
  • After all of the paperwork and interview process is completed, the court will need to approve the request, and you will be responsible for signing an oath to uphold the responsibilities that come along with guardianship. 

What Would Your Responsibilities Be After Obtaining Permanent Guardianship? 

Some of the responsibilities that may come with guardianship include the following.  Each situation is different, as the needs of those being provided for will be different. 

  • Determining a safe place for the person to live
  • Providing monitoring for their living environment and ensuring that it is safe and clean
  • Being available to consent to any necessary medical treatments and procedures
  • Making determinations on how the person’s finances, benefits, and assets will be allocated and handled
  • Paying any bills the person has 
  • Managing and maintaining any real estate or property that the person has
  • Determining, consenting to, and providing monitoring if there are any non-medical services necessary for the person’s well-being, such as therapy
  • Providing permission for the release of confidential financial and medical information is necessary
  • Maintaining records of all of the person’s expenses
  • Aiding in decisions regarding end of life care and medical intervention
  • Acting on their behalf when dealing with creditors
  • Helping them to perform day-to-day activities and providing them with the resources needed to have as much independence as possible
  • Filing reports annually to the court regarding the guardianship status

While the guardian is responsible for most of the decisions that will affect a person’s life, they should always do their best to seek the input of the individual they have guardianship over, ensuring that their wishes are carried out as well as can be. The guardian should also make sure that their actions align with what was originally authorized by the court and the wishes of the parents, if applicable to the situation. Some guardians may be granted broad authority, while others may be more specified. There are some cases where the guardianship of finances and medical decisions may be split between two people, and in these situations, it is important that the guardian does not overstep these boundaries. 

Do You Need a Lawyer to File for Permanent Guardianship?

While you can petition the court on your own to obtain permanent guardianship of an individual, the process can be mentally and financially draining. The paperwork and process can be complicated for those not familiar with the legal world, and there can also be certain situations that come up that you will need to address. Because of this, you can make the process significantly easier, less stressful, and more likely to come to your desired outcome, if you obtain an attorney experienced in the process of obtaining legal guardianship. 

Once You Become the Permanent Guardian What Estate Planning Do You Need to do?

Advance Health Care Directive

An advance health care directive allows you to name someone to make health decisions for you when you are incapacitated.  This is often used to decide on whether or not to use feeding tubes, ventilators, or other life-sustaining treatments.  It is also used if you are unable to speak for yourself or sign health documents even at a doctor’s appointment.

The Advance Health Care Directive is also known as a living will or durable power of attorney for healthcare.

If you do not have an advance health care directive, doctors will do everything they can to keep you alive even if that is not what you want.  Be sure to discuss with whomever you choose what you would want them to do.

Durable Power of Attorney for Finance

Similar in intent to an advance health care directive, the durable power of attorney for finance allows you to name someone to take care of your finances if you become incapacitated.  This can be the same person or a different person than you named for your healthcare decisions.

If you do not name someone, then a court will appoint someone to manage your finances.  Your spouse may not have access to your finances unless everything has/had already been set into joint property.

You want to make sure that whoever you name is someone you trust.  They will handle all of your finances!

If you do not have someone you trust, you can contact a professional to help you set up fiduciary support.


Setting up a trust for your children will make sure that they will have the financial support they will need.  It can also ensure that your children will not receive their whole inheritance when they turn 18.  Naming someone other than the guardian to be the trustee of the trust can help make sure your children are using their inheritance wisely.  Regardless, you want to make sure that the guardian and the trustee can get along and make decisions together.

There are many factors involved when trying to lay-out how a trust will coordinate with a guardian, powers of attorney, advance directives, wills, and more.  Your best bet is to set up a consultation with a great estate planning attorney.

Last Will and Testament

Not everyone has a will ready to go even though this document is arguably the most important end of life document you can prepare.  Moreover, it is the most commonplace that people name a guardian for their children. 

Covering the basics here, both parents can write a mutual will, or they can write separate wills nominating the same person to be a guardian.  Obviously, much of this will depend on your marriage and parenting situation.

Naming a guardian in a will does not necessarily make that person the permanent guardian by default.  The named guardian will still need to be approved and found able to perform by a court. 

If you have been chosen to be a guardian for minors, you should request to have a copy of the will on hand, or accessible immediately upon the parent(s) passing.   


You Also Now Need a Guardianship Plan

This shouldn’t come as a surprise at this point.  After all, that’s how you came to be the guardian.  Now it’s up to you to create a meaningful contingency plan for guardianship in your estate.  A guardianship plan will lay out what is to happen to your children should you be incapacitated. More than likely if you have a spouse, your spouse will take over the full care of your children. However, if you or your spouse is not in town, not readily available, estranged, or any number of other scenarios where you (or they) cannot immediately take custody of your children, things can go sideways, fast!

Here’s a breakdown of what you need to know about Guardianship Plans:

You will need to name a guardian for your children.  You can also include what you want for your children, such as the type of schooling they will receive, if you want them to participate in sports, what values and morals you want them to grow up with, etc.

You want to choose someone you trust to follow your wishes.  They also should be able to financially and emotionally support your children and perhaps even have the same faith or values as you do.

Having Guardianship Forms Ready to Go

Some parents may have a guardianship form already ready to go.  This form names a permanent guardian for their child and also temporary “first responder” guardian(s). 

A temporary guardian is a person who can be there for the child immediately and until the permanent guardian is able to get to the child.  

Imagine something happens to the child’s parents while they are out of town and away from their kids.  The authorities who have to notify the family have no idea what guardianship plans are in place for the kids and absent any documentation they will have to take custody of the children for their safety.  

A neighbor or close family friend could be a temporary guardian, if so named, for the sake of keeping the children out of temporary foster or state care, until you can provide documentation of guardianship.  Of course, having the guardianship nomination forms immediately on hand is critical for the temporary guardians to step in and establish agency over the minors. 

All potential guardians, permanent and temporary, should have a copy of their guardianship paperwork on hand or readily available, as they may need to produce these documents in a hurry if they are needed.  

Draft a Guardianship Letter Letting Others Know Your Wishes for Your Family

A guardianship letter is not a legal document, but it is still an important document to have.  In a guardianship letter, parents can document how they want their child(ren) to be raised. 

A guardianship letter may include:

  • Type of Education:Should the child to go to public school or private school? Is there a specific school or district the parents want their child to be in?
  • Religion: What religion is the family.  Is it important to the family that the kids continue to be raised in that faith?  
  • Upbringing: How do/did the parents want the child(ren) raised? Do they want their children to be taught responsibility by having chores and earning an allowance?  Do they want their child to be raised however you see fit?  Have they decided to leave assets to enable this? 

The letter may also include reasons why they chose you as the guardian for their child. Writing the letter is a way to help anyone else not understanding why they were chosen, the reasons that they were.


Being a Guardian is Definitely a Big Deal!

Taking on the responsibility of being the guardian of a child is a big step.  You want to make sure that you are prepared for the amount of work you will have ahead of you.  You also want to make sure you are doing it for the right reasons.  If at any point you do not feel like it will be the right fit for you or your family, tell the child’s parents immediately so they can choose someone else.

You also want to be sure that you have copies of any legal documents for child custody if their parents die, so you can show them to the proper people when the time comes to take guardianship of the child. 

Contact us today to schedule a consultation.

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