Who Would Raise Your Kids If You Couldn’t? (What You Don’t Know About the First 72 Hours)

We frequently collaborate with parents on this very topic, especially during this time of year, nestled between Mother’s Day and Father’s Day, when the love for your children is often at the forefront of your thoughts. However, there’s a question that we discover most parents haven’t truly addressed, even those who believe they have.

When we engage with parents, we often find that many have contemplated who would care for their children if something were to happen to them, perhaps during a peaceful moment on a long drive, or in a discussion with a partner that reached a mutual understanding in their minds but never made it onto paper.

What we share with them, and what many parents fail to recognize, is that the understanding in your mind, or the agreement with your godparents, holds no legal weight. If something were to occur to you tonight, the choice of who raises your children would no longer be yours. It would be determined by a court and a judge who is unfamiliar with you, your children, or your values.

This is what that truly signifies, and here’s what you can do about it right now.

The Choice That Gets Passed to a Stranger When You Don’t Make It

When we inquire about parents’ thoughts on what might occur, most believe that the right individuals would naturally take charge. This could be a sibling, a grandparent, a godparent, a step-parent, or a close friend. Those who care for your children would find a way to manage things.

However, that’s not how the legal system operates.

In the absence of a designated guardian, a judge is responsible for appointing one. This judge has never met you or your children. They are unaware of your family’s values, your relationships, or who your kids would feel most secure with. They don’t understand what matters to you, how you would prefer healthcare decisions to be made for your children, or your educational preferences. Instead, they are presented with a petition from one family member and a competing petition from another, each convinced they are the best choice.

Disputes over custody of children (and often the financial resources left for them) can be among the most distressing experiences for a family already dealing with loss. Grandparents, aunts and uncles, siblings, close friends—those who truly care for your children—can find themselves embroiled in a legal battle at the most challenging time in their lives. The result may not align with what you would have wanted.

The key takeaway: Without a legally designated guardian, the authority to decide who raises your children falls to a judge, a court system, and a process you would never want your loved ones to become entangled in. The individuals you trust the most might lack the legal authority to intervene, regardless of how clear the choice appears to everyone in your family.

The First 72 Hours: The Window Nobody Plans For

During our planning discussions, we often notice that most parents focus on the long-term concern: who will raise our children throughout their childhood? However, very few consider what occurs in the first 72 hours following an emergency.

Who holds the legal power to pick your children up from school if you were to be hospitalized tonight? Who can give permission for emergency medical treatment if your child gets hurt before anyone has had the chance to contact a lawyer? Who can intervene immediately, not after a court process, but right at this moment?

This is the gap we address with families ahead of time, before a crisis arises, while we still have the opportunity to plan for it.

Here’s a scenario we guide parents through. Imagine something happens to both of you on a Tuesday evening. Your children are with a babysitter. Emergency responders arrive. There’s no document available that specifies who should take care of the children. The babysitter lacks legal authority. The neighbors cannot step in legally. Even the grandparents, who live just twenty minutes away, do not have the legal right to take custody at that moment. The authorities adhere to protocol. Your children end up in the temporary care of strangers, not because anyone has let them down, but because there was no system in place to direct what should happen. Your will, assuming it names a guardian, is tucked away in a filing cabinet or a lawyer’s safe. The person you designated still needs to be appointed by a court before they can assume custody. That process can take weeks or even months, not hours.

This situation is not an uncommon worst-case scenario. It represents a foreseeable gap in many guardianship plans. This is the gap we frequently encounter in the plans that parents ask us to evaluate.

A comprehensive plan identifies two key elements: the individual who would care for your children in the long term, and the individuals authorized to provide immediate care during the hours before that longer process begins. If either of these elements is missing, a gap exists. And these gaps can make already challenging situations significantly more difficult.

This is where a Kids Protection Plan can transform what those initial hours look like. A family that has us as their attorney has someone to reach out to. We are already familiar with the plan, know who you have designated, understand your wishes, and can assist your family in activating everything you have set up. The grandparents who arrive in the middle of the night won’t have to guess what you would have wanted. The designated guardian won’t have to worry about whether anyone has the necessary paperwork. The plan is clear, we are available, and the family does not have to face any of this alone. That is the support a relationship with us provides to a family during the most challenging time of their lives.

In summary: The question of who will be the immediate guardian and what happens in the first 72 hours is just as crucial as the long-term arrangements. Yet, most parents have not planned for either.

The Real Reason Most Parents Keep Delaying This

When parents finally approach us after years of hesitation, we often inquire about their reasons. The most frequent response is that the choice seems permanent. And permanence can feel like a burden. What if the individual you select isn’t the right fit in a decade? What if your relationship with your sibling evolves? What if choosing someone leads to an uncomfortable discussion with the family member you didn’t select?

Here’s our advice: selecting a guardian is not a fixed, irreversible choice. We assist our clients in revisiting this decision as their children mature, as relationships change, and as situations develop. What truly matters is making a decision today, reflecting the people and connections you currently have.

Regarding the unease of picking between family or friends: that discomfort is valid and warrants an honest discussion. However, leaving the choice to a court doesn’t shield anyone from awkwardness. It merely distances you from the process and places the decision in the hands of a judge who is unfamiliar with your situation.

What we emphasize to our clients: appointing a guardian is a choice you can reconsider and modify. Failing to name one is a choice you cannot reverse.

The Questions That Matter More Than “Who Do I Trust Most?”

When we guide parents through this process, most begin with trust, which is indeed the right instinct. However, trust by itself does not fully address the question.

The ideal guardian is someone who would raise your children in a manner that closely aligns with your own parenting style. Here are the questions we discuss with our clients, out loud, alongside their partner, and ideally with the individual they are considering:

• Values and parenting approach. Does this individual share your core values regarding faith, education, discipline, and community? Would your children see reflections of themselves in the environment this person would create?
• Willingness and genuine capacity. Have you asked them directly? A guardian who is taken aback by their nomination differs significantly from one who has agreed with a clear understanding of what that role entails.
• Practical considerations. Where does this person reside? Would your children have to change schools, leave their community, or part ways with their friends? Is this individual at a stage in life where they can realistically take on the responsibility of children?
• Age and long-term health. While a grandparent may seem like the most emotionally suitable choice, they might not be the most practical option throughout your children’s entire upbringing.
• Sibling dynamics. If you have multiple children, can this person ensure they stay together? Are there any situations that could lead to your children being separated?

• Backup guardians. What if your first choice is unable to serve? Illness, changes in circumstances, or shifts in relationships could render your primary guardian unavailable. By naming one or two backups, you ensure that there is always someone with clear legal authority ready to step in.
• If you’re designating a couple. Relationships can evolve. If the couple you select separates or divorces, who then becomes the guardian? Do they share the responsibility? These are important questions to address now, in writing, rather than leaving it to a court to decide later.

Another important point we emphasize to our clients: a godparent does not equate to a legal guardian. This is one of the most prevalent misconceptions in estate planning. Verbal agreements, informal understandings, and family assumptions hold no legal significance. What truly matters is a properly executed legal document.

There are no flawless answers to these inquiries. However, we guide our clients through them thoughtfully because the aim isn’t merely to identify the most responsible person in your family. It’s about finding the individual whose home, values, and lifestyle align most closely with the environment your children are already familiar with.

The key takeaway: The guardian question isn’t just “who do I trust?” It’s “who would raise my children in the way I would?” Often, these are the same person. But delving into the deeper question ensures that your choice is made for the right reasons.

Why This Isn’t a Conversation to Have Alone

From our perspective, selecting a guardian is among the most crucial choices a parent can make. It is also deeply intertwined with the overall plan, and it cannot function in isolation.

The individual who raises your children may differ from the one who handles their finances, and distinguishing these roles is often the best approach. The most suitable caregiver in your family might not excel as a financial manager. A thoughtfully crafted plan allows you to make these two choices separately.

This also brings to light a more challenging reality: appointing a guardian without any financial resources backing them puts that person in a difficult situation. Choosing the right individual means little if there isn’t a financial strategy to support them. The decisions regarding who will care for your children, how their lives will be financed, and what occurs in the first 72 hours are interconnected. They relate to one another in ways that may not be clear until a crisis arises.

In our interactions with families, we observe these connections daily. The discussion about guardianship is part of a broader planning process, not just a simple checkbox. When we assist parents with this, we ensure that the appropriate individuals are designated, the necessary resources are established, and that those you rely on are fully aware of your wishes. A plan that no one is aware of is not truly a plan. Moreover, the relationship does not conclude once the documents are signed. When an event occurs, your family knows to reach out to us. We understand your plan, we recognize the individuals you have chosen, and we are there for your family in moments when you cannot be. This is the aspect of our work that no document alone can fulfill.

There’s an important aspect we often discuss that many parents overlook: you can officially designate individuals you would never want to raise your children. It’s not just about who you prefer, but also about who you want to exclude. When we assist our clients with this, the resulting document significantly reduces the chances of someone you wouldn’t choose stepping forward as a candidate. This isn’t typically included in standard plans offered by most attorneys, but we believe it’s one of the most protective measures you can take for your children.

What we emphasize to our clients: Choosing a guardian is crucial. Including a guardian in a comprehensive Life & Legacy Plan is what truly safeguards your children.

What You Can Do Right Now

If you have children at home and haven’t designated a guardian, or if you have done so only in a will and not as part of a complete Kids Protection Plan, we are here to help you make that change today. Not because something is imminent, but because if something were to happen, you want to be the one making that choice, not a judge who has never met your family.

We assist families in creating a Life & Legacy Plan that outlines who will raise your children, who will care for them in an emergency, and how they will be financially supported. We don’t provide generic documents; our relationship with you continues beyond the signing. We invest the time to understand your unique family situation, craft a plan that truly works when your loved ones need it the most, and maintain a connection with you so that when the time comes, your family has someone to turn to who already understands your wishes.

Schedule a complimentary 15-minute consultation to learn more.

This article is a service of Kristen Wong of Seasons Estate Planning, APC, a Personal Family Lawyer® Firm. 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. That’s why we offer a Life & Legacy Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Life & Legacy Planning Session™.

The content is sourced from Personal Family Lawyer® for use by Personal Family Lawyer® firms, a source believed to be providing accurate information. This material was created for educational and informational purposes only and is not intended as ERISA, tax, legal, or investment advice. If you are seeking legal advice specific to your needs, such advice services must be obtained on your own separate from this educational material.