From Legal Requirements to Practical Tips: A Comprehensive Guide to Naming a Guardian for Minor Children in Alabama & Florida

Guidance from a Birmingham, Alabama estate planning law firm.

Naming a guardian for your minor children is one of the most important — and often most emotional — decisions a parent can make. No one wants to imagine their children growing up without them, but planning ahead ensures your children will be cared for by someone you trust, in a way that reflects your values and priorities.

Without a legally named guardian, a judge — who does not know your children or your wishes — will make the decision instead. The outcome may be far different from what you would have chosen.

The good news: by planning now, you can clearly document who you would like to care for your children. This guide explains how guardianship works in Alabama and Florida, what the courts consider, and how to choose the right guardian for your family.

Why Naming a Guardian Matters

If both parents pass away or become unable to care for their children, the court must appoint a guardian. When no guardian is named in a will (Alabama) or Declaration Nominating Preneed Guardian of Person and Property of Minor Child(ren) (preneed declaration) (Florida), a judge follows state law and their own discretion to choose the person they believe is most appropriate.

This can result in:

• A family member you would not have chosen

• Relatives disagreeing over who should take the children

• Temporary placement with someone you never intended

• Long-term uncertainty for your children during an already traumatic time

  
  

The only way to make your wishes legally enforceable is to name a guardian in a valid will (Alabama) or preneed declaration (Florida).

How Guardianship Works in Alabama and Florida

While both states honor a parent’s properly executed nomination of a guardian, if the nominated individual meets the state’s qualifications, each has its own legal structure and court process. Here is what parents should understand.

Guardianship in Alabama

Alabama gives parents significant authority to nominate the person they believe should raise their children. The guardianship process for minors is governed by § 26-2A-70 et seq., Ala. Code 1975, and is designed to protect children. The probate court oversees the appointment of guardians and continues supervising those arrangements to ensure children’s needs are properly met.

1. Who Can Serve as Guardian?

When both parents of a minor have passed away, the guardianship process begins with a petition filed in the Probate Court of the child’s county of residence. This petition is typically filed by:

• A person nominated in a parent’s will

• A close relative

• Another interested adult

  
  

The court may appoint any adult who can act in the child’s best interests. However:

• If the child is 14 or older, the court must appoint the minor’s chosen nominee unless there is a clear reason not to.

• A guardian named in a parent’s valid will generally has priority.

  
  

2. Can a Parent Nominate a Guardian?

Yes. Alabama allows a parent to name a guardian in their will for:

• A minor child

• An unmarried adult child who is incapacitated

  
  

This is the most reliable way to ensure your wishes are honored. The court will review the nomination to ensure it is appropriate and in the child’s best interests.

3. Duties of a Guardian in Alabama

A guardian is responsible for:

• Ensuring the child receives proper medical care, support, and education

• Using the child’s resources for the child’s health, support, and education

• Managing the child’s belongings responsibly

• Conserving excess funds for future needs

• Reporting to the Probate Court as required

• Consenting to medical care, adoption, or marriage

• Providing a safe, stable home

  
  

Courts may limit or customize these powers depending on the circumstances.

4. When Does Guardianship End?

Guardianship ends automatically upon:

• The death, resignation, or removal of the guardian

• The minor’s death, adoption, marriage, or reaching age nineteen (for a non-incapacitated adult)

  
  

Guardianship in Florida

Florida’s guardianship laws are designed to protect minors by ensuring responsible adults care for them under court supervision. Guardianship of minors is governed by Chapter 744, Florida Statutes, and involves oversight by the circuit court.

1. Who Can Serve as Guardian?

When both parents of a minor have passed away, a guardianship case begins with a petition filed in the circuit court in the minor’s county of residence. When deciding whom to appoint, the court considers:

• The child’s age and needs

• Whether the parents are unable to provide care

• Any risks to the child

• Whether the parents named a guardian in a preneed declaration

  
  

Even when families agree on who should serve, the court must formally appoint the guardian.

The proposed guardian must:

• Be at least eighteen years old

• Have a suitable relationship with the child

• Demonstrate financial stability

• Pass a background check (convicted felons are prohibited)

  
  

The court may appoint a guardian ad litem to independently assess what is best for the child.

2. Types of Guardianship for Minors in Florida

A guardian may be appointed to manage:

• The child’s personal care (guardian of the person)

• The child’s assets (guardian of the property)

• Both, if needed

  
  

Guardianship may be temporary (in emergencies) or permanent.

3. Duties of a Guardian in Florida

Guardians are fiduciaries and must act solely in the child’s best interests. Duties include:

• Providing a safe, stable home

• Making medical, educational, and daily care decisions

• Managing the child’s property responsibly

• Keeping detailed financial and medical records

• Filing reports and accountings with the court

• Supporting healthy family connections when appropriate

• Ensuring the child’s physical, emotional, and developmental needs are met

  
  

Failure to meet fiduciary duties can result in removal.

4. Court Oversight and Accountability

Florida courts closely monitor guardians through:

• Annual reports

• Financial accountings

• Required investigations

• Periodic reviews

• The authority to remove guardians who fail to comply

  
  

This oversight exists to protect the child.

5. When Does Guardianship End?

Guardianship of a minor in Florida ends when the child turns 18. It may also end if:

• The child is adopted

• The child’s assets are fully distributed or moved into another legal structure

• The court determines that guardianship is no longer necessary

  
  

If the child remains unable to manage their affairs at 18, the case may be converted to an adult guardianship if less restrictive alternatives are inadequate.

What to Consider When Choosing a Guardian

Choosing a guardian is not about finding a perfect person — it is about choosing someone who will love, protect, and guide your children if you cannot. Here are the key factors to evaluate:

1. Shared Values and Parenting Style

Think about:

• Faith or spiritual beliefs

• Education priorities

• Discipline approach

• Lifestyle and family routines

• Cultural values

• Their willingness to honor your parenting goals

  
  

Alignment in core values helps ensure continuity in your children’s upbringing.

2. Age, Health, and Energy Level

Choose someone who has the physical and emotional ability to parent your children through childhood and teenage years.

3. Relationship With Your Children

Consider:

• Do your children know and trust them?

• Do they show patience and genuine care?

  
  

The adjustment will be easier if the guardian is already part of your children’s life.

4. Stability and Financial Responsibility

Guardians do not need to be wealthy — your estate plan and life insurance can provide financial resources — but they should have:

• Reliable judgment

• A stable home

• Responsible financial habits

  
  

5. Location and Possible Relocation

If the guardian lives far away, would your children need to move? How would that affect their school, friendships, and extended family connections?

6. Willingness to Serve

Not everyone is prepared for the responsibilities of guardianship. Always talk with your chosen guardian before naming them.

Frequently Asked Questions

1. Should You Choose One Person or a Couple?

Naming a married couple may seem natural, but consider:

• What happens if the couple divorces?

• What if one spouse passes away?

• Would you want both of them to serve individually?

  
  

Often, naming one person as the primary guardian — and naming their spouse as a successor — provides greater clarity.

2. Guardian vs. Trustee: Should They Be the Same Person?

Parents may choose different individuals to fill different roles:

• Guardian of the Person – provides daily care

• Trustee – manages the child’s inheritance

  
  

This division can:

• Reduce burdens on one person

• Provide financial oversight

• Fit the strengths of different individuals

• Prevent your chosen guardian from feeling guilty when they need to say “no” to certain requests from your children

  
  

Many families prefer this structure for checks and balances.

3. What if You Are No Longer in a Relationship with Your Child’s Other Parent?

If you share parental rights with a former partner, it is best to discuss guardian choices and try to reach an agreement. However, if the two of you cannot agree on whom to name, the court will ultimately follow the nomination made by the parent who passes away or becomes unable to care for the child last.

Common Mistakes to Avoid

Before making your final decision, be mindful of a few common mistakes parents sometimes make when naming a guardian:

• Choosing someone out of obligation

• Not naming backups

• Failing to talk with the guardian in advance

• Forgetting to update the nomination after major life events

• Not putting the nomination in a legally executed will or preneed declaration

Even the best intentions are not legally enforceable without proper documentation.

How to Document Your Guardian Choice and Avoid Future Confusion

To properly document your guardian nomination and ensure your chosen guardian can access all required documents:

1. Nominate a guardian in a properly executed will (Alabama) or preneed declaration (Florida)

2. Keep your estate planning documents in an accessible, safe location

3. Tell your guardian where your documents are stored

4. Review your choice every few years

5. Consider creating a trust (revocable living or testamentary) to manage money for your children

   
   

A clear and updated plan prevents confusion and conflict.

Your Next Step

Choosing a guardian is an act of love and protection. By making this decision now, you give your children the gift of clarity, stability, and care — no matter what the future holds.

If you need help creating or updating your estate planning documents to name a guardian, our team at Provident Law / Estate Planning LLC is here to guide you. Contact us today to schedule a consultation.

About the Author

Colin McMichen is an experienced attorney and the founder of Provident Law / Estate Planning LLC, a Birmingham, Alabama-based firm. With a focus on estate planning and probate law, Colin is dedicated to helping individuals and families navigate complex legal matters with confidence.