What are Guardian Nominations and Why are They Important?

The attorney answer is: “it depends.” But don’t worry, I’m going to talk you through the answer.

I tell my clients, “If you don’t have a plan for your kids, that’s fine; the state of California has a plan for you.” Most of the time, the grandparents (or if you’re divorced, the other parent) will step in and take care of your kids if you’re not able to. If there are no grandparents or family members that can step in, your kids could end up in foster care.

This is where a guardian nomination (also called guardianship nomination) comes in. A guardian nomination is one component of a complete estate plan for California residents. It is a document provided to the court that lists the person or persons that you desire to be a parent or "guardian" for your children if anything should happen to you. Although a guardian nomination is just that—a nomination—courts lean heavily on the nominations that parents provide.

Guardian Nominations

The primary purpose of a guardian nomination is to ensure that if you’re not able to take care of your children, a chosen individual can step in without a lengthy legal battle. Courts tend to place a significant amount of weight on the parent’s nominee.

The Most Complex Guardian Nomination I’ve Ever Written

I’m sharing this story because there were multiple things wrong with this particular guardian nomination, and my hope is that you don’t make the same mistake by reading this story. I met with a couple that proposed one of the… strangest… guardian nominations I’ve ever seen.

They were vehemently against their children living with the grandparents if anything should happen to them. However, it tends to be best for children to live with their grandparents if something happens to their parents, especially if the grandparents live close by.

When children move in with their grandparents after something happens to their parents, we are able to maintain some stability for the children. If the grandparents are close by, the children are able to stay in the same school, be around the same friends, and remain in a familiar area. This is important when something very disruptive happens to children.

I recently had a client that asked me who I would have wanted to stay with if something happened to my parents and without skipping a beat, I answered, “My grandparents.” Growing up, my dad’s parents lived around the block from us. I visited almost every week, if not every day. We had a great relationship, and it would have been the best thing for me and my brother to move in with them.

This particular couple had grandparents that lived 15 minutes away, had a relationship with the children, and loved the children very much. However, they wanted their children to move in with some friends that barely knew the children and lived over 500 miles away. The couple told me that the grandparents were “too old” to raise their kids because they wanted their children to be raised by a young, athletic couple. Please don’t make this mistake!

While good-intentioned, this arrangement would make it so that the grandparents would hardly ever see the children. On top of grieving the loss of their own children, the grandparents would grieve the loss of time with their grandchildren as well.

Choose A Guardian That Could Handle Your Children in Their Lives

Let’s say grandparents don’t live nearby or are not an option. In this case, you want to choose a guardian that is stable and has the ability to take care of your children. A couple with older adult children that you’re close friends with could be a viable option. Aunts and uncles can also be good options, especially if they have a good relationship with your children.

Choose a Guardian That Allows Your Children To Stay in the Same School System 

Another thing you should consider would be whether your kids would have to change school systems. Your children would already be grieving the loss of their parents; don't make them grieve the loss of all of their friends from school as well.

Don’t Have Special Provisions That Require Your Children to Move Around

This goes without saying, but the couple that I was working with created a special provision that required their children to rotate through different couples in their hometown each weekend. While this is something that you can do, it’s not something that I would recommend.

How This Plays Into Your Estate Plan

The guardian nomination acts as an azimuth for the court to follow when deciding who should take custody of your children. While it’s a very important thing, many parents will pause their entire estate plan because they’re paralyzed when deciding who should take custody of their children. 

Guardian nominations should be updated every 2-3 years due to how rapidly things change as kids get closer to 18. When deciding who to nominate as a potential guardian, it’s best to take a holistic approach—try not to get hung up on one minor detail about potential guardians; as long as they check most of the boxes, they should be a good fit.

Schedule a meeting with us today to discuss how to protect your legacy.