Choosing children's guardian is difficult but necessary

WALNUT CREEK, Calif. — It's a scary topic to even think about, but one Janet Amador of Moraga, Calif., knew she had to face head on this year. Amador had to name someone as guardian for her two young sons should something terrible happen to her.

Earlier this year, Amador's husband died unexpectedly. Widowed, and with a settlement from life insurance, Amador set up a trust and guardianship for her sons, ages 9 and 11.

If something happens to her, she says, she wants to know that her sons will live with someone who will love the boys as she and her husband did.

"I do a bit of travel for my position at work, and that kind of put it into another thought pattern," she says. "If you are on an airplane or somewhere else, you have no control. Not that you have control anyway."

It's a difficult decision to make. Call it morbid or gloomy, but guardianship is something everyone with children should think about and act upon, says John D. Hodson, a Vacaville, Calif.-based attorney and vice chairman of the family law section of the California State Bar Association. A legal guardian is someone who will take care of the children should both the biological mother and father die or become unable to take on the responsibility due to substance abuse or disability.

"It's your last gasp," Hodson says. "If you don't name a guardian, the court is going to have to, and the court may or may not do what you'd like. A judge would certainly try to act in your best interest, but he or she is acting at a real deficit. You, as a parent, are in a much better position to decide who the guardian of your children will be."

A named godparent is not a legal guardian, lawyers say.

"And, sadly, it's not rare. Parents die all the time, leaving children behind," Hodson says. "It's not the natural order of things, but it happens."

Many parental deaths lead to family squabbles if a guardian is not named, Hodson says. On the other hand, if no one is named a guardian in a will or trust, and nobody steps up to claim the children, they will go to foster care. When pop star Michael Jackson died, he had a will that named his mother as guardian of his children — but many families do not have such a will.

A tough topic

Amador's attorney, David J. Elefant of Walnut Creek, Calif., started the conversation about naming guardians for her children when she came into his office to set up a living trust. Dedicating someone to take care of her boys was the first thing she needed to take care of, the attorney told her.