Who raises your kids if something happens to both of you
It's a Friday night, and Maya and Chris are out for their anniversary dinner while the nineteen-year-old from next door watches their young children. On the drive home, someone runs a red light. Maya and Chris are both going to be okay, eventually, but tonight they're both headed into surgery and neither one of them is going to be answering a phone for a while. Back at the house, the sitter has just gotten a call from the hospital, and she's starting to realize that nobody ever told her what to do if this happened.
A lot of parents put this conversation off, and we get why. Nobody wants to picture it. But naming a guardian is often the thing that finally gets young parents to make an estate plan, and most advice about it stops at "just pick someone." That's a good start, but it skips the part Maya and Chris would care about most tonight, which is what happens before a judge ever gets involved.
Photo by Ilya Godze on Unsplash
The first night
Naming a guardian in your will doesn't give that person any legal authority right away. A guardianship is something a judge has to grant, and that takes time. So in the first hours, what matters most is which trusted adult can get to your kids, and how quickly.
If police find young children with no parent or guardian available, California law tells them to try to reach a parent first and, if they can't, to call a county social worker to take custody. That system is there to keep kids safe, and the people in it are usually trying to find family. But it can mean your kids spend time in emergency care while someone tracks down your relatives.
The fix is simple. Choose one or two people who live nearby, ideally people your kids already know, and make sure your sitter, your kids' school, and those people themselves know who gets the first call. Then write a one-page letter with those names and numbers, your kids' doctors, and any medications or allergies, and put it somewhere a babysitter would actually find it (the fridge is fine). It isn't a legal document, just a list of who to call.
Naming a guardian in your will doesn't give that person legal authority right away. A judge has to appoint a guardian first.
California also has a tool for the next few days or weeks that works without a judge. A Caregiver's Authorization Affidavit is a one-page form that the person caring for your kids signs, not you. It isn't filed with a court and it doesn't need a notary. With it, the caregiver can enroll your kids in school and consent to school-related medical care, and if the caregiver is a relative, they can also consent to other medical and dental care. Your kids have to be living with that person in California, and the form has to be signed again each year. A change to the law that took effect in January 2026 also widened the list of people who count as relatives on this form. Parents can cancel it at any time, which is handy if Maya and Chris are back home in a month and ready to take over again.
A Caregiver's Authorization Affidavit is signed by the caregiver, not the parent. It isn't filed with a court and doesn't need a notary.
Your choice carries weight, but the judge decides
When a guardianship does go to court, your nomination counts for a lot. A parent can name a guardian in a will or in any signed writing, and the law tells the judge to "give due weight" to that choice. A clear, recent choice of someone who is ready and willing goes a long way in the decision. It isn't automatic, however. The judge still decides what's best for your kids, and a court investigator usually looks into the proposed guardian first. In San Diego, the court says a regular guardianship can take up to two months from filing. If someone needs legal authority sooner, they can ask for a temporary guardianship while the case is pending. They have to show good cause, and the parents and certain others normally get at least five court days' notice unless the judge shortens it. Some courts save this for real emergencies, like a child who needs medical care right away.
The biggest limit on your nomination is the other parent. A parent's nomination works on its own only if the other parent agrees, has died, lacks legal capacity, or wouldn't need to consent to an adoption. If the other parent is alive and objects, a court can only give custody to someone else after finding that custody with that parent would be harmful to the child, which usually has to be shown by clear and convincing evidence. If you're married or partnered and on good terms, this is the easy part. You both name the same person, in matching documents, and the nomination works the way it's supposed to. If you're divorced or separated and you have real concerns about your ex, that's a different conversation, and it's one worth having with us.
While you're at it, think about money separately from day-to-day care. Kids can't manage an inheritance on their own, so if they inherit outright, the court may have to appoint a guardian of the estate, which comes with court supervision and regular accountings. You can name someone different for that role, or (what we recommend) leave the money in a trust with a trustee you choose, which usually avoids a guardianship of the estate altogether.
If the person you'd pick lives out of state
A lot of parents' first choice is a sister in Portland or a best friend in Austin. That can work, but it adds steps. The case generally gets filed in California, where your kids live, so your guardian will be dealing with a California court, at least at first. And once appointed, a guardian needs the court's permission before moving your kids to another state. If the judge says yes, the guardian will usually have to open a guardianship in the new state too, and the court can require such a proceeding once the kids have lived there for about four months (or another period the judge sets).
So plan on a local person for the first stretch, too. In Maya and Chris's case, the long-term guardian named in their will might be Chris's sister in Oregon, while Maya's mom, who lives twenty minutes away, is the first call: the one who picks up the kids that night and signs the caregiver's affidavit if it turns into a longer stay. Out-of-state guardians also can't use that affidavit unless the kids are living with them in California, which is one more reason the local person matters.
A guardian needs court permission before moving your children out of California.
When you'll be unavailable for a while
Not every emergency is permanent, and California law now has an option for that. Since January 2026, a custodial parent who expects to be unavailable for a stretch, such as because of a serious medical condition or military service, can ask the court to appoint the parent and their chosen person as joint guardians. The parent keeps their own rights, and the person they chose can act when the parent can't. A nomination can also be written so it takes effect only if something specific happens, like the parent's incapacity or absence. If you have a major surgery coming up, a deployment, or anything else that could take you out of the picture for a while, bring it up when we meet.
The steps you can take
While this may be a hard conversation to have, you’ll be glad you’ve done it.
Talk to the person you'd name, and ask them directly whether they'd say yes.
Pick a backup, in case your first choice can't do it when the time comes.
Put the nomination in your will or a signed writing, and if there are two parents, make sure you both name the same person.
Choose a nearby first call and write the one-page letter for your sitter and the fridge.
Decide who should manage any money your kids inherit, and whether it should go into a trust.
Look at it again whenever life changes, like a move or a new baby, or when your guardian's own life changes.
If you've been putting this off, you're in very good company, and it's a lot easier to do on a quiet weekday than to think about on a Friday night like Maya and Chris's. When you're ready to get it on paper, our team at Laurel Trust Law can help.