A smiling pregant mother plays with her toddler child using wooden blocks; parents of young children concept

Parents commonly wish to ensure that their children are taken care of if events fall out such that both parents are deceased or incapacitated while the children are still young and in need of care. One way to accomplish this objective is to establish a guardian. Parents have the opportunity to appoint a guardian when they establish a comprehensive estate plan. Such appointments can give parents peace of mind, allowing them to rest secure in the knowledge that their children will not be left to the courts in the event of an accident or other unforeseen circumstance that removes them prematurely from the children’s lives. There are some rules around guardianship that are important for parents to keep in mind as they decide whom to appoint. To seek assistance with establishing a guardian for a child, or with any other aspect of your estate plan, considering contacting Roulet Law Firm, P.A. at either (763) 420-5087 or (941) 909-4644 to schedule a consultation with an estate planning attorney in their Florida or Minnesota offices. Or you can fill out the contact from on this page and a member of our team will contact you to schedule your consultation.

What Is a Legal Guardian?

A legal guardianship is a judicially created relationship between an adult caregiver and a child whose legal parents are no longer able to care for them. This relationship grants the guardian specific powers and duties in regard to the child’s care. Guardianship is usually intended to be permanent and self-sustaining, but may only be temporary in some cases.

Guardianships are often activated because both of a child’s parents have died, but other circumstances, such as parental incapacity, may also call for a designated guardian to step into their legal role. While many of the duties that a legal guardian takes on are parental in nature, it is also important to understand that this is not adoption. Even if the parents have died, this does not sever the child’s relationship to their parents.

How Do You Designate a Legal Guardian?

Designating a legal guardian for a child typically requires written documentation, although most parents (and prospective guardians) will probably prefer to have an oral conversation first. The documentation process is similar in both Florida and Minnesota, but there are some minor differences.


Florida Statute 744.3046 outlines the requirements for naming a legal guardian in case a child’s parents become incapacitated or die. This is called a preneed guardian for a minor. The parent can nominate a preneed guardian with a written declaration that names an individual to serve as guardian if or when the minor’s last surviving parent becomes incapacitated or dies.

The declaration must provide reasonable identification of both the declarants and the designated preneed guardian. At least two witnesses must witness the declarants’ signatures on the document. The declaration must also contain the names of all minor children to whom it applies as these names are listed on the children’s birth certificates or court order, as well as their dates of birth and any Social Security numbers.


Under Minnesota Statute 524.5-202, parents may appoint a guardian for a child using their Last Will and Testament, designation of standby guardian, or by another signed writing that is executed in the same manner as a health care directive under Minn. Stat. § 145c.02. Parents are able to specify limitations to the powers of the guardian, if they desire. They can also revoke or amend this appointment prior to its confirmation by the court.

In many instances, legal guardianship is not designed to take effect unless and until both of a child’s parents are deceased or incapacitated, and therefore unable to object to the court’s confirmation of the appointment of the guardian they have named, regardless of the document in which they made the designation. However, when the parent dies or is incapacitated. However, if the parent wishes, they can petition the court and show evidence that they are likely to become unable to care for their child within the next two years, and then the court will confirm the guardianship and terminate the rights of others to object to it.

How Does Guardianship Work?

Guardianship works much like parenting does. The guardian is responsible for the well-being and care of the protected person, typically a child. They are able to make the same types of decisions a parent would normally make regarding healthcare, where the child will live, and the child’s education. Guardianship lasts until the child turns 18, but may last until they graduate from high school, if the child is expected to turn 19 prior to graduating. In some cases, guardianship over the child and over the estate may be handled by separate guardians. Guardians who only have guardianship over the estate are allowed to make financial decisions for the child. However, court approval is usually needed to spend or sell any of the child’s assets.

In many cases, the same person has guardianship over the child and the child’s estate, which grants them the authority to make personal, medical, and financial decisions for the child. If you are uncertain whether to separate guardianship over your child and your estate, the experienced estate planning attorneys with Roulet Law Firm, P.A. might be able to assist you in determining the best options for your circumstances.

What Makes a Good Guardian?

When trying to choose a guardian for a child, parents often struggle withhow to choose the right individual. While the right choice will be unique to each family, there are some characteristics and questions to consider that may help parents make a choice they are comfortable and satisfied with. Some characteristics to look for include:

  • Empathy and kindness
  • Patience
  • Shared core values and beliefs
  • Honesty and integrity
  • No convictions other than minor traffic violations (this is a legal requirement in Florida)

Questions To Ask Before Naming a Guardian

Parents will also want to ask a series of practical and legal questions regarding any individual they are considering as a guardian to ensure that the person they name will have the skills, disposition, and resources to care for the child, and that the guardian’s appointment will be accepted by state courts. In Florida, for instance, an individual with a criminal record other than of minor traffic violations may not serve as guardian to a minor, so it is important for parents to make sure the guardian they designate will be not only personally suited, but legally qualifed, to serve.

Questions parents should ask in regard to each individual they are considering as guardian include:

  • Does the individual have the time required to take care of the child?
  • Is the individual in good health?
  • Is there any history of substance abuse in the individual’s past or present?
  • Does this individual manage relationships well?
  • Is the guardian related to the ward or do they know the ward and family well enough to follow the will and the parents’ desires for how their child should be raised?
  • Has the ward expressed any wishes regarding who they would like their guardian to be?

Have You Appointed a Guardian for a Child Yet?

Designating a legal guardian is part of the comprehensive estate plan for any parent of minor children. Appointing a legal guardian gives parents the peace of mind of knowing that their children will be taken care of and the decision will not be in the hands of a judge who does not know the children or their unique personalities, wants, or needs. If you are struggling with the decision of who should be guardian or have other questions about legal guardianship or estate planning, consider calling Roulet Law Firm, P.A. at our Florida office at (941) 909-4644 or our Minnetonka, Minnesota office at (763) 420-5087 for a consultation with an experienced Minnesota and Florida estate planning attorney. Or you can fill out the form on this page and a member of team will contact you to schedule your metting.

If you would like to learn more, you can download our book, "What Happens to Them What Every Parent Needs to Know About Estate Planning" and watch our Free online masterclass where we reveal insider strategies for your will, trust, health care directive and more by clicking below.

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Chuck Roulet
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Nationally Recognized Estate Planning Attorney, Author, and Speaker
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