Guardians: Who Will Take Care of My Kids If I Can’t? Washington Estate Planning for Parents
- Davies Law Office
- Aug 8
- 4 min read
A lot of first-time parents want us to draw up an estate plan because they’re hoping to answer one pressing question: "Who will take care of my kids if I can't?" It’s not fun to think about not being there for your children. No matter what terrible scenario you imagine, the question remains the same. From a lawyer's perspective, the scenario gets even more terrible if you don't legally answer that question ahead of time; by default, that means you're asking a Washington state court to figure out who should raise your children. So, let's figure out how you can answer the pressing question of who would take care of my kids if I can’t.
Washington Estate Planning for Parents - Two Scenarios, Two Legal Documents
All the bad scenarios boil down to two basic situations: either you're alive, but presently unable to take care of your children (i.e., you’re incapacitated), or you've passed away and definitely can't take care of your children.
For those two basic scenarios, you answer the question using two different legal documents. When you're alive, you nominate your choice of guardian using a Durable General Power of Attorney document (often just called a "POA" or “Financial POA”). Once you've passed away, you nominate your choice of guardian using your Last Will and Testament.
Two Roles: Guardian and Conservator
When you nominate someone in either of those documents to take care of your children, the state of Washington says you’re actually nominating someone to play two distinct legal roles with distinct responsibilities:
Guardian of the person, and Conservator of the estate
The guardian of the person is responsible for taking care of your child’s physical person. They drive your child to school and doctor's appointments, make them dinner, tell them to do their homework, put them to bed—essentially the guardian cares for your child as a human being. Meanwhile, the conservator of the estate is responsible for managing your child's property. Until your child turns 18, they can't legally own assets or enter contracts, so someone needs to manage their estate on their behalf until they come of age.
You probably don't think about it, but as a parent you're already fulfilling both these roles. If you're not able to fulfill either role, you need to nominate someone to take over.
Two Choices: You Nominate or the Court Appoints
Many people don't realize that your Will or POA doesn’t automatically give the person you choose the legal powers of a guardian and conservator. You actually only nominate that person. That person doesn't get the legal powers to act as your child's guardian until a court appoints that person. That said, your nomination carries a lot of weight. In Washington, it's presumed that the court will appoint the person you nominate, unless there’s a very good reason not to (e.g. felony conviction, incapacity, the person is 21 years of age or younger, or credible objection from a family member). Otherwise, the court will almost always follow your lead.
Ultimately, the court’s role is to safeguard your child’s best interests and ensure that any intervention is as limited and tailored as possible. Nomination is just step one in a longer legal process designed to protect your child when you no longer can.
Note on how many people to nominate at a time: it's usually easiest to nominate one person at a time rather than multiple people acting together. Even if you intend for both members of a couple to raise your children, it's administratively simpler if only one person must complete the many steps necessary to become a legal guardian; one signature, fewer hurdles.
Questions to Consider When Choosing a Guardian
Beyond the legal qualifications of a guardian, carefully think through how your nomination of guardian will impact your child’s life. Here are some questions that can guide you to select a good choice for your child:
Who parents like you do? Who will help your child grow up into a good human being?
Who has the time, space, and money to take in children—and the emotional bandwidth to do it well?
Who lives nearby? Keep in mind that you're more than likely sending your child to live with the people you nominate; if they don't live near you, will your child be able to handle being uprooted from their nearby family members, friends, school, and wider community?
How old are your choices for guardian/conservator? Many young parents pick their own parents. But if you do, consider whether your child’s grandparents will still have the energy they need to raise young children or teenagers; some grandparents are up to the task, some aren’t.
Do you have backups? If your first option dies, moves, or simply isn't able to raise your children, you'll want to think through who could step up into their place.
Talk to Your Team
And finally—talk to your team. Make it a point to sit down with the people you want to nominate as your child's guardian/conservator. Talk through the “what ifs.” Listen to their ideas and concerns. Estate planning is, ultimately, building a team of willing people to take care of your loved ones when you can't. The more you work together, the better prepared your team will be to carry your children through a life-changing challenge. Please note that estate planning is complex and we can't give you legal advice through blog posts. As always, if you want to work with us to prepare a plan for your kids, please don't hesitate to contact us at 425-440-3494 or office@dlolawgroup.com.
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