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Guardian for your minor children

Role of the Guardian

If you die and your spouse survives you, he or she will naturally have custody of your minor children, so you might think there is no need for a guardian of the person for them. Even if you are divorced, it is almost impossible for the custodial parent to deny the noncustodial parent custody of their children if the custodial parent should die. (There are rare exceptions, such as if the surviving parent if in jail or has been found incompetent by a court).

But what if you both should die, say in a car accident? Your will should provide for that real, if remote, possibility by nominating one or more persons to be the guardians of the person of your minor children and to take physical custody of them. 

How do you select a guardian (and successor guardian)? You need to ask (and answer) questions to arrive at the correct answer. Who would provide the best care for your children if you die? Answer this question with a view toward religious, socioeconomic, and geographical considerations. For example, if a child is in their mid-teens and has a good relationship with friends in the current area, it may be disastrous to appoint a guardian who lives out of state. The loss of the parents, coupled with being separated from friends could be very damaging.

A will can nominate a guardian of the person. The Probate or Orphans' Court judge does not have to accept your choice - although unless someone challenges that choice as not being in the child's best interest, the court will almost always go along.

Be sure to consult with the person you name to be sure he or she wants the job and name an alternative guardian in case your first choice should have a change of heart or die before the child is grown.

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