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Guardianship vs Parental Rights: Does Guardianship Override Parental Rights?

“Does guardianship override parental rights” is a common question in the Estate Planning world. Luckily, our guide covers that answer and more.

Patrick Hicks

Patrick Hicks, @PatrickHicks

Head of Legal, Trust & Will

There are many facets to Estate Planning. And an essential part to any comprehensive Estate Plan is the appointment of guardians for your kids. Even if you’re not ready to set up your Will or Trust, if you have children, nominating guardians to care for them in the event you’re ever unable to do so yourself is not only important, it’s one of the best things you’ll ever do as a parent. 

But it’s a big decision - we get it. And if you’re just starting to think about guardianship, it’s pretty normal to wonder does guardianship override parental rights

Keep reading to learn more about the rights a guardian would have, when they would have authority and how you can revoke or amend an appointment when and if needed.

Understanding a Guardian’s Role 

Appointing a guardian for your children is one of the single most responsible things you’ll do as a parent. Without having a legal declaration in place, either via a guardianship document, or as outlined in your Will, you’re risking a lot. 

We never want to think about the unthinkable...that we won’t be there for the most important people in our lives, but should that ever become a reality, don’t you want to have a say in who steps in to care for your children? 

Unless you’ve prepared beforehand, you’re leaving an awful lot up to the courts. And if you have multiple people who would want to be honored with the role of guardian, an already-heartbreaking time for your children could end up in a messy, terrible legal battle.   

It’s important to keep perspective about what guardianship rights actually mean, especially if you’re still alive and able to care for your children yourself. 


Legal Guardianship vs Parental Rights  

Perhaps one of the biggest deterrents to going through the process of setting up guardianship is just due to a huge misconception about guardianship rights. You should know that a guardian generally would never interfere in your family dynamics unless you are physically or mentally unable to provide appropriate care for your kids.  

You are your children’s first and primary guardian. That said, you can (and should) appoint a guardian to have the authority to step in if needed. And only if that happens, would your named guardian have the right to make medical, educational and/or any other decisions for your children. Keep in mind that you can use other aspects of your Estate Plan (for example, your Will or a Trust) to: 

  • Stipulate any conditions you want followed

  • Give guidance about your wishes 

  • Set up financial security for your children

You can terminate a guardianship appointment at any time. Should the person you name no longer be your first choice for any reason at all (location, ability, desire, financial situation, marital status, or in the event they pass away, etc.), you can simply update your document to revoke privileges and to appoint someone new. 

Guardianship Alternatives

Sometimes guardianship may be established in the “least restrictive form” possible. This could be done in cases where the parents are still alive, but may not be fit or well enough to fully and properly care for their own children. If a child would benefit from having biological parents in their life in some capacity, any of the following may be helpful: 

  • Establish a joint bank account

  • Execute a

  • Consider

Specific state laws may come into play here, so it’s a good idea to check with your local state regarding guardianship rights when a parent is still living. 

Guardianship vs parental rights is something you should make an effort to truly understand before completing this essential part of your Estate Plan. We can assure you, the peace of mind that comes from knowing you’ve protected your children every way possible is well worth the time you’ll invest in this important aspect of your Estate Plan. Get started today!