Guardianship 101: What to Consider When Planing for Young Children

Michael J. Feinfeld on February 3, 2015

Unless you are blessed with lots of close family members, choosing a person to act as the guardian for your children upon your death (or incapacity) is a difficult matter to think about, let alone talk about.

And it’s not just determining who will be responsible for raising your children and caring for them. You also have to decide how your assets and possessions are to be managed and held for their benefit.

Daunting problems to say the least. In fact, fears over how to make these decisions often keep parents from planning for the future.

Perhaps you do not have family members or friends with whom you feel close or trust enough to make decisions regarding your children. Or perhaps you and your spouse or partner cannot agree on who would be the best person(s) to nurture and provide for your children.

Being the parent of a toddler, I get it. I have experienced these very issues in planning for my own child.

Luckily, this is one of my areas of expertise, so I thought I would try to shed some light on the topic for you. The explanation below answers the common questions about guardianship, and will hopefully give you an understanding of the problems and concerns that may arise from not choosing a guardian.

The purpose of this article is not to frighten you, but to encourage you to begin thinking about how you will provide for your children if you should die or become incapacitated during their minority. This goal is often easily accomplished through the execution of your Will or other planning documents. Remember, the secret to successful estate and succession planning is acting early and reviewing your plan often.

“What if I don’t have any family members who can take care of my children?”

This is one of the biggest questions I encounter at meetings with potential clients or at estate planning seminars.

These parents (understandably) express that they do not want such decisions to be made by child protective services or the courts.

It’s a good question. It encapsulates the fear of many parents that someone else (read: “the State”) will determine how their child is raised and who will take care of their child upon their death or incapacity.

And this fear is completely reasonable. New York courts alone have the power to appoint a guardian (of the person or property) of a child either residing in or with property in the State. This means the court can appoint a foster parent or Public Administrator in cases where the Court determines it is in that child’s best interest.

Generally, the guardianship of a minor child will last until the child turns eighteen years old. However, in instances where the child is mentally or developmentally disabled, the courts have the power to appoint a parent or designated individual(s) as a permanent guardian (pursuant to Article 17A of the Surrogate’s Court Procedure Act).

The courts will generally not seek the consent of a minor child in appointing a guardian (or entertain a minor child’s petition for the appointment of a guardian) unless the child is over the age of fourteen years.

While the courts do have the power to make such a guardianship appointment for a child even when their parent(s) have made (and filed) a proper written designation, generally the courts will respect a deceased or incapacitated parent’s wishes and honor their guardian(s) of choice.

Since the courts tend to honor such designations in making guardianship appointments, the proper designation of a guardian (either in a Will or properly prepared instrument) for a child is perhaps the most essential piece of estate planning a parent can do.

Even if you don’t have close family members you can designate as guardians, you still have options, which I will discuss below.

“Are there different types of guardians?”

Short answer – yes. I’ve broken down the different types below, along with some of the important rules that accompany each.

Standby Guardianship:

A standby guardian is one whose power becomes operative upon court appointment at the time of the parent’s death or incapacity.

The designation of a standby guardian is one of the easier forms of guardianship to establish (without the additional formalities of a testamentary instrument (see below)). A form is provided by law which can be quickly prepared, signed, witnessed, and also easily revoked. Like other forms of guardianship, the standby guardian may be appointed guardian of the person and/or property of the minor children.

However, unlike other forms of guardianship, the standby guardian’s authority over the minor runs at the same time as that of the parent(s). The designated standby guardian must petition the court to be appointed as permanent guardian within 60 days after a parent’s death or incapacity, or the authority to seek the appointment will cease.

The use of a standby guardian is often appropriate for situations where a parent has been diagnosed with a debilitating illness and a future incapacity is expected. The designation of a standby guardian may also be made in addition to a testamentary designation of a guardian. (However, it is a good idea to designate the same person for both positions in order to avoid any conflict over who should be appointed at the parent’s death.)

Appointment of a Guardian Via Testamentary Instrument:

The most common form of guardianship designation is through a testamentary instrument such as a Will or testamentary trust.

The appointment of a guardian in a testamentary instrument becomes operative upon its admission to probate after the death of the parent(s). Because a testamentary instrument “speaks for” the parent after death, it is subject to the more stringent laws and rules regarding the preparation and execution of Wills and trusts.

After admission to probate, the designated guardian has 3 months to petition the court to be appointed as guardian of the minor, or the designee will be held to have renounced their appointment. Unless the testamentary instrument expressly states otherwise, the guardian appointed by the court must provide a bond to be appointed as the guardian.

Designation of a Guardian by Deed:

In situations where the designation of a permanent guardian must be enacted more immediately, New York law allows a parent who lives in New York to execute a deed of guardianship appointing a guardian for their child in their place.

Such a deed of guardianship must be executed in the same manner as a deed for real property and must be recorded in the office for recording deeds in the county where the parent lives in order for the court to appoint the guardian named in the instrument. The deed must be recorded within 3 months of the parent’s death or incapacity, otherwise the appointed guardian is assumed to have renounced their appointment.

Like a guardianship established by testamentary instrument, guardians appointed by guardianship deed must also provide a bond prior to their appointment by the court. Unlike appointment by testamentary instrument, the appointment of guardian by deed takes effect immediately upon decree of a court after the instrument has been recorded.

Since the guardian will take the place of the parent immediately upon judicial appointment, this type of guardianship deed may be appropriate for parent(s) facing deportation or long periods of incarceration.

“Is just my consent enough?”

For single parent families (where only one parent is living), the surviving parent may decide whom to appoint as the guardian of their minor children.

If both parents are living, however, then both parents have to agree (or consent to) any designation of a guardian. If the parents cannot agree on who should be designated as the guardian of their child(ren), a court may appoint one for them. In cases of guardianships established during the lifetime of a parent (e.g., guardianship deeds), the minor’s living parents must typically be provided notice to appear in court at the appointment or consent to such appointment.

“Who should I appoint as guardian?”

In general, any United States citizen (or resident alien domiciled in New York State) over the age of eighteen is eligible to receive letters from a court appointing them as a guardian of a minor child.

All such adults may be appointed as a guardian so long as they are not a convicted felon (unless they have obtained a Certificate of Relief of Disability from a court or from the Department of Corrections) or have a record of child abuse.

However, these basic requirements for being appointed a guardian of a minor are merely threshold levels of competence. Most parents should exercise greater care in choosing whom to designate as the guardian(s) for their children.

Some clients put off completing their estate planning because they simply have no idea whom to appoint as the guardian of their child(ren).

If this sounds like you, one potential solution is to look amongst your friends and family to determine whose parenting style you admire the most and designate that person the guardian for your children.

Another possibility is to see which of your friends or family members is best at interacting with or taking care of your children and choose that person.

If you are like me and are having trouble agreeing with your spouse on one individual, one possibility is to choose more than one guardian for your child, since New York guardianship law allows the court to appoint different individuals to be the guardian of a minor’s person and the guardian of their property.

“What if my chosen guardian isn’t good with money management?”

If you are worried about money, you have a few options…

  • Designate more than one guardian (this is particularly useful if one friend or family member is closer to your child than the other, but isn’t that great with money).
  • Set up a testamentary trust and appoint a different person (than the designated guardian) to be the trustee of your children’s property.
  • Appoint a trust protector to supervise the administration and distribution of the trust assets for your child. Such a trust protector would periodically review the accountings of the trustee(s) to ensure that the interests of the children and the provisions of the trust are satisfied.

“What if my chosen guardian changes his/her mind or does not qualify?”

If you are still struggling to choose between individuals to serve as guardian of your children, another possibility is to designate one individual as the guardian of your children and to designate another as the successor guardian – to serve in the event that the initial guardian does not qualify or wish to serve as guardian.

Choosing an individual to serve as the successor or backup guardian for your children is always a sound policy, since one can never be certain of the future (for example, that a designated guardian will be able to complete the term as the appointed guardian). Moreover, in the absence of an appointment of a successor guardian, the court may decide on its own who will be appointed.

Regardless of how you choose to designate a guardian for your minor children, it is important to properly plan for the possibility that someone else may have to shoulder the responsibility of raising and caring for your children.

If you are struggling to determine whom you should designate as a guardian, we can help you to make that decision. Get in touch with us today to make an appointment, and we can get your estate plan ready for year-end.

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