As an estate planning attorney, I work with parents on this exact question all the time. And especially this time of year, sitting right between Mother’s Day and Father’s Day, the love you have for your children tends to be at the forefront of your mind. But there’s a question I find most parents haven’t actually answered yet, even the ones who think they have.
When I sit down with parents, I find most have thought about who would take care of their children if something happened to them, maybe during a quiet moment on a long drive, or in a conversation with a partner that reached an agreement in their heads but never quite made it onto paper.
Here’s what I tell them, and what most parents don’t realize: that agreement in your head, or the agreement with your godparents, doesn’t exist in the eyes of the law. If something happened to you tonight, the decision about who raises your children wouldn’t belong to you anymore. It would belong to a court, and a judge who doesn’t know you, your children, or what matters most to your family.
Here’s what that actually means, and what you can do about it right now.
The Decision That Gets Handed to a Stranger When You Don’t Make It
When I ask parents what they think would happen, most assume the right people would just step up. A sibling, a grandparent, a godparent, a step-parent, a close friend. The people who love your children would figure it out.
That’s not how the law works.
When there is no legally named guardian, a judge appoints one. That judge has never met you or your children. They don’t know your family’s values, your relationships, or who your kids would feel safest with. They don’t know what you care about, how you would want healthcare decisions made for your children, or what educational choices matter most to your family. What they see is a petition from one family member and a competing petition from another, each one certain they are the right choice.
As an estate planning attorney, I’ve seen how quickly uncertainty can create conflict. Family disputes over who should care for children, and sometimes who should manage money left behind for them, can become some of the most painful conflicts a grieving family faces.
Grandparents, aunts, uncles, siblings, and close friends who genuinely love your children can find themselves in a legal dispute at the worst possible moment in their lives. The outcome is not guaranteed to be what you would have chosen.
The bottom line:
Without a legally named guardian, the decision about who raises your children belongs to a judge. The people you trust most may have no legal standing to step in, no matter how obvious the choice seems to everyone in your family.
The First 72 Hours: The Window Nobody Plans For
In my planning sessions, I find most parents think about the long-term question: who would raise our children through childhood?
Very few think about what happens in the first 72 hours after an emergency.
As an estate planning attorney, I can tell you that those first hours are often the most important. They’re also the period most families have never planned for.
Who has the legal authority to pick your children up from school if you were hospitalized tonight? Who can authorize emergency medical care if your child is injured before anyone has had a chance to call a lawyer? Who can step in immediately, not after a court process, but right now?
This is the gap I help families close before a crisis ever happens.
Here is the scenario I walk parents through. Something happens to both of you on a Tuesday evening. Your children are with a sitter. Emergency responders arrive. There is no document anyone can find that names who should take the children. The sitter has no legal authority. The neighbors have no legal authority. Even the grandparents who live twenty minutes away may not have legal authority to take custody in that moment.
The authorities follow protocol.
Your children could be placed in temporary care while the legal system works to determine who should take responsibility. Not because anyone failed them. Not because nobody loves them. Simply because no legal instructions were in place.
Your will, assuming it names a guardian, may be sitting in a filing cabinet somewhere or stored with an attorney. The person you named still has to be formally appointed by a court before they can take custody. That process takes weeks or months, not hours.
This is not a rare worst-case scenario. It is a predictable gap in many guardianship plans.
A complete plan names two things: the person who would raise your children long-term, and the people who are authorized to provide immediate care in the hours before that longer process unfolds.
Without both, there is a gap.
And gaps are where already difficult situations become much harder.
This is where having a Kids Protection Plan® changes what those first hours actually look like. A family with a Personal Family Lawyer® relationship has someone to call. Someone who already knows the plan, knows who you named, knows what you wanted, and can help your family activate everything you’ve put in place.
The grandparents who arrive in the middle of the night don’t have to guess. The named guardian doesn’t have to wonder where the paperwork is. The family isn’t left trying to figure everything out alone.
The bottom line:
The immediate guardian question – what happens in the first 72 hours – is just as important as the long-term one. Most parents have planned for neither.
The Real Reason Most Parents Keep Putting This Off
When parents come to me after putting this off for years, I ask them why.
The most common answer isn’t procrastination.
It’s pressure.
In my experience, parents aren’t avoiding this conversation because they don’t care. Usually, they care so much that they’re afraid of making the wrong decision.
What if the person you choose isn’t right in ten years?
What if your relationship with a sibling changes?
What if naming one person creates tension with another family member?
Here’s what I tell them:
Naming a guardian is not a permanent, unchangeable decision.
I help clients update this decision as their children grow, relationships shift, and circumstances evolve. What matters is documenting a decision today based on the people and relationships you have right now.
As for the discomfort of choosing between family members or friends, that discomfort is real. But leaving the decision to a court doesn’t avoid the conversation. It simply removes you from it entirely.
What I tell clients is simple:
You can always update a guardianship decision.
You cannot make it after you’re gone.
The bottom line:
Naming a guardian is a decision you can revisit and update. Not naming one is a decision you cannot take back.
The Questions That Matter More Than “Who Do I Trust Most?”
When I walk parents through this process, most start with trust.
That’s the right instinct.
But trust alone doesn’t answer the question.
The better question is:
Who would raise your children closest to the way you would raise them yourself?
That’s why I spend time walking parents through this decision instead of simply asking them to write down a name. The document matters, but the conversation matters too.
Here are the questions I encourage families to consider:
Values and Parenting Style
Does this person share your values in the ways that matter most? Faith, education, discipline, family relationships, and community involvement all shape a child’s life.
Willingness and Capacity
Have you actually asked them?
A guardian who is surprised by their nomination is very different from someone who has thoughtfully agreed to the responsibility.
Practical Reality
Where does this person live? Would your children need to change schools, leave friends, or move away from their support system?
Age and Health
A grandparent may be the most emotionally obvious choice, but may not be the most practical one over the course of your child’s entire upbringing.
Sibling Relationships
If you have multiple children, can this person realistically keep them together?
Backup Guardians
What happens if your first choice cannot serve?
Life changes. Your plan should account for that.
If You’re Naming a Couple
Relationships change too. If the couple you name later separates or divorces, what happens then?
One more thing I make sure every parent understands:
A godparent is not automatically a legal guardian.
It’s one of the most common misconceptions I see. Verbal agreements, family assumptions, and informal understandings carry no legal weight. The only thing that matters is a properly executed legal document.
The bottom line:
The guardian question isn’t simply “who do I trust?” It’s “who would raise my children the way I would?” Those are often the same person, but asking the deeper question helps ensure you’re making the right choice.
Why This Isn’t a Conversation to Have Alone
In my experience as an estate planning attorney, naming a guardian is one of the most important decisions a parent will ever make. It’s also one of the most connected decisions in an entire plan.
The person who raises your children and the person who manages money for your children may not be the same person.
In fact, separating those roles is often exactly the right move.
The best caregiver in your family may not be the best financial manager. A well-designed plan allows you to choose the right people for each role.
It also raises a harder truth: a guardian named in a plan with no resources behind it is being placed in an impossible position.
Naming the right person means very little if there isn’t a financial plan supporting them.
These decisions—who cares for your children, how their lives will be funded, and what happens in the first 72 hours—do not exist in isolation. They are connected in ways that are not always obvious until something goes wrong.
In my work with families, I help ensure these pieces fit together. The guardian conversation is not a standalone checkbox. It is part of a comprehensive Life & Legacy Plan®.
There’s one more piece I discuss with clients that many parents never think to ask about: you can also formally identify people you would never want raising your children.
Not just who you want.
But who you don’t.
When properly documented, this can significantly reduce the likelihood that someone you would never choose could successfully seek guardianship.
The bottom line:
Naming a guardian matters. Naming a guardian as part of a complete Life & Legacy Plan® is what truly protects your children.
What You Can Do Right Now
If you have children at home and haven’t legally named a guardian – or if you’ve only named one in a will and not as part of a complete Kids Protection Plan® – now is the time to address it.
Not because something is about to happen.
But because if something did happen, you would want the decision to be yours.
As a an attorney, I help parents create Life & Legacy Plans® that do more than name guardians. We help you address who would raise your children, who can care for them immediately in an emergency, how they will be financially supported, and how your loved ones can access guidance when they need it most.
Because if something happened to you, the people you love should not be left guessing about what comes next.
They should have a plan – and someone they can call who already knows exactly what you wanted.
At Cheever Law, APC, we don’t just draft documents; we ensure you make informed and empowered decisions about life and death for yourself and the people you love, starting with a valuable and educational Life & Legacy Planning Session. The Life & Legacy Planning Session will allow you to get more financially organized and make the best choices for the people you love. If you have already completed your estate plan, we will review that plan at your Life & Legacy Planning Session to ensure that it will work the way you intend and address any holes or gaps that may be present if circumstances have changed since you executed your plan.
To learn more about our one-of-a-kind systems and services, contact us or schedule a 15-minute introductory call today. you love means planning with clarity – not guesswork.