What Happens to My Kids should I get Sick or Die
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What Happens to My Kids if I get Sick or Die?

When you are a single parent, you might be concerned about who is going to care for your children should something happen to you. This post will explain your options. It’s also advised to speak with a lawyer.

What is “testamentary guardianship”?

When you are the child’s only parent still alive, your Last Will and Testament can appoint a testamentary guardian for your child. Following your passing, a judge is going to conclude the guardianship. The guardian then takes an oath and will then have legal guardianship duties such as devising a report for the judge every couple of years. You can modify a testamentary guardian any time prior to your passing by modifying your Will.

What happens when the other parent is still living and still has their parental rights?

The court is going to first inquire if the other parent can care for them. You can’t keep the other parent from acquiring custody when you pass away. Nothing in your Will can appoint another individual as your children’s guardian.

Why should the other parent acquire custody?

The courts are the only one that can legally withdraw parental rights. Appointing a testamentary guardian in your Will does not terminate the rights of the other parent.

The other parent is going to get custody of your children when you pass away, unless both are true:

  • The other parent is unsuitable.
  • It would put the children’s welfare at risk.

Are my children able to have a guardian when I am still living?

Possibly. The court could name a guardian for your children when you are still living if both of these are true:

You are extremely ill. You are unable to make decisions for your children.

There is no other biological parent, or the other parent is unsuitable.

A guardian is going to step in to fulfill your children’s needs, such as making medical, financial, and personal care choices.  A guardianship such as this does not terminate your parental rights. Anyone is able to petition the court to name a guardian. You are also able to authorize an individual to make health care and/or financial decisions for your children in Power of Attorney documentation if you are extremely ill and cannot make decisions on your own.

Am I able to get custody of children that are biologically not mine?

Possibly, when one of these is true:

  • The children aren’t residing with their parents.
  • The parents are unsuited to care for their children.

Is someone able to adopt my child?

Possibly. You can relinquish your parental rights by means of the process of adoption. The other parent is notified of the adoption. They could dispute (attempt to stop) it.

The courts are able to terminate (end) an individual’s parental rights when that parent

  • did not take care of their responsibilities as a parent
  • is unsuitable
  • has deserted the children
  • poses a risk to the children

The court could deny the adoption (not allow it to occur).

What is (POA) power of attorney?

Beginning June 11, 2020, you can temporarily give an individual your powers concerning care, custody, and/or property of the children. You are now able to give an individual power of attorney when you are not going be available or able to offer care for any minor child to who you are legally responsible. You are allowed to give an individual POA for just one day up to twenty-four months.

I am afflicted with a long-term illness. What could happen to my children?

The illness could take up all your money. Making you unable to care for your children.

If you are able to, you are required to make custody, guardianship, POA, and/or adoption arrangements whereas you’re still healthy. If you haven’t done so, and your children were in foster care when you passed away, the court is still able to name a testamentary guardianship.

Your testamentary guardian, appointed in your Will, needs to be ready to provide a court with proof and testimony that residing with a testamentary guardian is in the best interest of the children. This can comprise of evidence and testimony about the testamentary guardian’s relationship with your children.


  1. WhattoExpect. (2018, December 03). How to pick a guardian for your child. Retrieved March 30, 2021, from https://www.whattoexpect.com/first-year/how-to-pick-a-guardian-for-your-child.aspx

Arizona Family Law

Naming guardians in your will can be part of your estate plan. You may think you’re too young or don’t have enough money to justify the expense, but if you have children, you have priceless assets. There are many considerations when naming guardians for your kids. However, the process doesn’t have to be expensive or complicated.

There’s nothing better than the peace of mind you will have knowing you’ve protected your family at a time when they need it most. Let us help. Schedule a consultation or contact Ogborne Law, PLC of Arizona today.

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