Living Will & Custody of Children

People facing terminal illnesses or other end-of-life situations face a number of difficult issues. How will you let your doctors know about your medical wishes if you become unable to express your desires? What happens to your children if you fall ill or die? Both of these questions can be addressed by using specific kinds of legal documents, a living will and a last will and testament. Contact a lawyer in your state for legal advice about using these documents.



Child custody is both the legal right to make decision about issues affecting a child's life, such as education and medical care, and the right to have the child live in your household. Both parents, even if never married or married and subsequently divorced, typically have custody rights over their children. The other parent's custody rights are not removed when one parent dies, and the surviving parent gets custody over the children unless a court orders otherwise.


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Living Wills

People prepare living wills to ensure their desires about health care treatments are known in the event they become unable to express those desires. Living wills are legal documents that must comply with the laws of the state in which you live. These documents can only be used when you are alive and unable to tell others what you want. Once you die, your living will is no longer effective. Living wills are often accompanied by durable powers of attorney, another kind of legal document, that appoints someone else to make decisions on the incapacitated person's behalf. Powers of attorney can also be used to nominate a guardian.


Last Will and Testament

A last will and testament, unlike a living will, only takes effect after your death. People typically use these documents to distribute their property to new owners after death but can also include specific provisions that apply to their minor children. Parents often include a guardian clause into their wills. This clause names a person whom the parents want to look after their children in case they die. Guardian clauses generally have no effect if one parent is still alive, but if both parents die simultaneously or if the other parent has already died, the guardian clause serves to notify the court what the parent's desires are.



When parents die leaving behind children who do not have a parent, the court must determine who becomes legally responsible for caring for those children. The person the court appoints, called a guardian, has both legal and physical custody rights over the children and has the duty to ensure they are cared for and raised properly. When a parent's will nominates a guardian, the court takes that person into consideration. However, the court must ensure the best interests of the child are met when it appoints a guardian and is not bound to appoint the one nominated in the parent's last will and testament.