Why Naming a Guardian Is So Important
When you name a guardian in a will or trust, you’re doing more than choosing a caregiver—you’re preserving your values, family stability, and peace of mind. Legally designating a guardian ensures that someone you trust is ready to step in and make critical decisions about:
Where your child lives and goes to school
Their physical and mental health
Religious upbringing
Access to inheritance or trust funds
Without this legal safeguard, your loved ones could be left to navigate a complicated court process at the worst possible time.
What Happens If You Don’t Name a Guardian?
If both parents (or legal caregivers) pass away or become incapacitated without naming a guardian, the state must intervene.
1. A Guardianship Petition Is Filed
Usually, a relative or close friend will file a petition with the local probate or family court requesting to be appointed as the guardian. If no one steps forward, Child Protective Services or another government agency may take temporary custody.
2. The Court Opens a Guardianship Case
Once the petition is filed, the court initiates a formal guardianship proceeding. This involves multiple steps:
Investigating the child’s circumstances
Reviewing the proposed guardian’s background
Possibly appointing a guardian ad litem (an advocate for the child)
Conducting hearings and interviews
This process can take weeks or even months—during which your child may be in legal limbo or placed in temporary foster care.
How the Court Chooses a Guardian
The court’s main goal is to act in the best interests of the child, not necessarily to honor informal family preferences. When evaluating potential guardians, judges consider:
The existing relationship between the guardian and the child
The guardian’s physical, emotional, and financial ability to care for the child
Stability of the home environment
Location (to minimize disruption to the child’s life)
Whether the guardian will respect the child’s heritage and values
The court may favor close relatives, but if there’s family conflict, competing petitions, or concerns about someone’s fitness, the decision becomes more complex.
Risks of Leaving Guardianship to the Court
Failing to name a guardian doesn’t just leave a gap—it opens the door to a host of legal and emotional challenges:
1. Family Conflict
Relatives may disagree on who should step in. Without legal direction, these disputes often lead to court battles that can strain relationships and delay decisions.
2. Undesirable Placements
The court might appoint someone you would never have chosen—simply because they meet the legal criteria or were first to file.
3. Delayed Care Decisions
Medical, educational, and financial decisions may be put on hold while the guardianship case is resolved.
4. Temporary Foster Care
If no qualified guardian is immediately available, the child may be placed in state custody while the court investigates.
Real-World Example: The Impact of No Plan
Imagine this: A couple with two young children dies unexpectedly in a car accident. They had discussed who they wanted as guardian but never documented it. One set of grandparents petitions the court. A distant aunt does too. Now, a judge must decide between competing relatives—none of whom know the couple’s actual wishes.
This all-too-common situation could have been avoided with one simple estate planning document.
How to Legally Name a Guardian
To ensure your wishes are followed, you must name a guardian in writing—usually as part of a will or revocable living trust.
Here’s how:
Create or update your estate plan with the help of an attorney
Include a clause naming a primary guardian, and consider naming a backup (contingent) guardian
Discuss your decision with the chosen guardian to ensure they’re willing and able
Keep copies of the document in a safe, accessible place
Naming a guardian does not transfer custody while you’re alive. It only becomes legally relevant upon death or permanent incapacity.
Common Mistakes to Avoid
Even well-meaning parents can make critical errors when planning guardianship. Watch out for these pitfalls:
Not updating your plan when family circumstances change (divorce, death, relocation, etc.)
Naming co-guardians who may not work well together
Failing to consider financial readiness along with emotional suitability
Choosing based on obligation rather than parenting ability
When to Revisit Your Guardianship Designation
Revisit your choice of guardian every few years or whenever major life changes occur:
Birth of another child
A change in the guardian’s health, location, or lifestyle
Divorce, remarriage, or death of a spouse
Shift in your relationship with the designated guardian
How Denevan Falon Can Help
Denevan Falon is a reputable guardianship law firm in South Dakota with extensive experience in guardianship and conservatorship cases. We provide skilled, compassionate guidance to clients navigating these sensitive legal matters.
At Denevan Falon, we bring decades of combined legal experience and a shared commitment to protecting vulnerable individuals and their estates. With backgrounds spanning trusts and estates litigation, business litigation, and complex legal planning, our team delivers comprehensive representation tailored to each unique case.
Here’s how we can assist you:
Trusted Legal Knowledge: We understand the intricacies of South Dakota guardianship and conservatorship law and ensure full compliance with statutory and procedural requirements.
Guidance in Contested Cases: When disputes arise, we offer strategic advice and clearly outline your options to help you make informed decisions during emotionally charged proceedings.
Streamlined Legal Process: From filing petitions to notifying interested parties and setting hearings, we manage the process from start to finish—saving you time and avoiding unnecessary complications.
Clarity for Long-Term Success: We draft clear, enforceable orders that empower guardians and conservators to fulfill their duties effectively and with confidence.
Whether you’re seeking to protect a loved one, manage their affairs responsibly, or resolve a complex guardianship dispute, Denevan Falon is here to guide you toward a secure and favorable resolution.
