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Can I Name Someone To Take Care Of My Kids If I Die Or Am Unable To Care For Them?

You are able to name someone, a “testamentary guardian”, in your Last Will and Testament to take care of your children after you die. However, if you are a single parent and the other parent is still alive, you cannot take away the other parent’s right to raise your children in a Will.


Testamentary Guardian


You can express your wishes that someone other than the other parent takes care of your children in your Will. Your proposed guardian would then have to take the probated Will to court and ask to be named guardian. The court will consider what you put in the Will, but the court will not automatically adopt your wishes. The court will decide whether the other parent is unwilling or unable to exercise their parenting functions. The person you pick as guardian should have a strong relationship with your children, and you should make sure they are capable and willing to serve as guardian.


If you want to name a guardian in your Will and the other parent is alive, you should not make false or offensive statements because that would not help the later guardianship case. Your guardian will have to take the will to court and tell the court why the other parent is unwilling or unable to exercise their parenting functions. Your Will should state things like you do want your children to be raised in a home free of violence, drug abuse, crime or any other things that cause you concern. If the other parent simply cannot be found, then the court will probably approve your choice of guardian. The Will should also waive your attorney-client privilege in case you have a family law attorney with confidential information about the other parent that could help the proposed guardian in court. Your Will should also say that your personal representative can use money from your estate to fight for custody because it is in the children’s best interests.


Appointing A Guardian When You Are Still Alive


If you are still alive and the other parent cannot fulfill parenting duties, you could have a guardian appointed. It would be easier to authorize someone to make health care and financial decisions for your children with a Power of Attorney if you need help because of a serious illness. If you have a long-term illness, you should make guardianship, Power of Attorney, or adoption arrangements while you are still healthy.


Adoption


Adoption is another option. If the other parent is alive, they can challenge the adoption. The other parent can agree to the adoption too. If the parent challenges the adoption, the court would have to find they are unfit parents and terminate their rights first. Washington courts rarely let a parent end their own parental rights unless someone else is adopting the children.


If you have any questions or need assistance with creating a Last Will and Testament, contact us at View Ridge Family Law & Estate Planning to discuss your needs at 206-589-8684 today.

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