Guardianship Designations in Maryland
If you are a parent of minor children, a guardianship designation is one of the most important decisions you will ever make. It answers the question that every parent hopes they never have to face: who will raise your children if something happens to you?
Without a guardianship designation, the court decides. That process can be slow, contentious, and result in an outcome that does not reflect your wishes. At SoMD Estate Planning, attorney Kathryn Batey helps Maryland parents put legally enforceable guardianship designations in place, so you control who cares for your children no matter what.
What Is a Guardianship Designation?
A guardianship designation is a legal document in which you name the person or persons you want to serve as guardian of your minor children if you and the other parent are both unable to care for them. The guardian takes over day-to-day responsibility for your children’s care, including decisions about their education, healthcare, and upbringing.
In Maryland, a guardianship designation is most commonly included in your last will and testament. However, it can also be created as a standalone document for parents who want to put a guardian in place immediately, even before completing the rest of their estate plan.
Why Every Parent Needs a Guardianship Designation
Without a guardianship designation, the Orphans’ Court in your county determines who will care for your children. The court considers the best interests of the child, but it does so without the benefit of knowing your preferences. Family members may disagree about who should serve as guardian, leading to disputes that can be emotionally devastating for your children and your family.
In some cases, the court may appoint someone you would never have chosen. In others, the process itself — with its hearings, investigations, and delays — exposes your children to uncertainty during an already traumatic time.
A guardianship designation eliminates this uncertainty. It gives the court clear, legally documented instructions about your wishes, and in most cases, courts honor a parent’s designated guardian.
How to Choose a Guardian
Choosing a guardian is a deeply personal decision. Here are some factors to consider:
Shared values — Choose someone who shares your parenting philosophy and values about education, faith, discipline, and lifestyle.
Willingness and ability — Make sure the person you choose is willing to serve as guardian and is realistically able to take on the responsibility, including financially and logistically.
Relationship with your children — A guardian who already has a close relationship with your children can provide stability and continuity during a difficult transition.
Age and health — Consider the age and health of your chosen guardian. A grandparent may be a loving choice, but may not be the best option if they cannot keep up with the demands of raising young children for many years.
Location — Think about whether a change in location would be disruptive to your children’s schooling and social connections.
Naming Alternate Guardians
It is critically important to name at least one alternate guardian in case your first choice is unable or unwilling to serve when the time comes. Life circumstances change, and your designated guardian may have their own health issues, family changes, or other circumstances that prevent them from stepping in. An alternate ensures that the court still has your guidance, even if your first choice is unavailable.
Guardianship in Your Will vs. Standalone Document
Most parents include their guardianship designation within their last will and testament. This is the most common and straightforward approach. However, there are situations where a standalone guardianship designation makes sense — for example, if you want to put a guardian in place immediately while you take more time to complete the rest of your estate plan.
Regardless of which approach you choose, the important thing is to have a guardianship designation in place. Do not wait until your estate plan is “perfect” to protect your children.
How Guardianship Works with Trusts for Minors
A guardianship designation names the person who will raise your children, but it does not necessarily address the financial aspects of their care. If you want to ensure that your assets are managed properly for your children’s benefit, you should also consider creating a trust for minors.
A trust allows you to set aside assets with specific instructions about how and when they should be used for your children — for example, paying for education, healthcare, and living expenses, with the remainder distributed when they reach a certain age. You can name the same person as guardian and trustee, or you can separate those roles to create a system of checks and balances.
Frequently Asked Questions
What happens if I don’t designate a guardian?
If you pass away without a guardianship designation, the Orphans’ Court will appoint a guardian based on what it determines to be in the best interest of your children. Family members may petition the court, and disputes can arise. The process is public, time-consuming, and may result in someone you would not have chosen raising your children.
Can I change my guardianship designation later?
Yes. You can update your guardianship designation at any time by creating a new will or amending your existing one. It is important to review your designation periodically, especially after major life events.
Can both parents designate different guardians?
If both parents pass away simultaneously and have named different guardians, the court will decide. It is best for parents to agree on a guardian and name the same person in both of their wills to avoid confusion and conflict.
Schedule Your Free Consultation Today
Protecting your children starts with naming a guardian. Call SoMD Estate Planning at (301) 818-0389 to schedule your free consultation with attorney Kathryn Batey. As a parent of two herself, Kathryn understands how important this decision is — and she is here to help you make it.