Guardians for your kids while you’re alive but not kicking
For parents, deciding who will raise their minor children if the parents die is one of the hardest decisions to make. In fact, the decision is so difficult that many parents avoid the topic and never do it. Not making a decisions is also making a decision and for those parents who avoid the issue, the route they choose is one of uncertainty, unnecessary costs, and perhaps a stint in foster care for their children. You need to name a permanent guardian and it can only be done in a will. More than half of the population if the US does not have a will – are you one of them?
Jacoba Urist, writing for the Huffington Post lists 4 myths that prevent parents from naming guardians in wills:
Myth No.1. There is a perfect choice who will raise your children exactly the way you would – but you haven’t figured out who that is yet. Wrong. No one will do it exactly the same way you would. You must choose the best from the available options – imperfect as they may be.
Myth No.2. Someone will step up if needed. Sure family, friends, neighbors all may love your children and be ready to care for them, but who decides? A Judge who is a stranger to you and your family will make a decision. If two family members are vying for the position, a Judge, Solomon-like, may not appoint either one of them. What happens to the children while this litigation continues? They’ll be meeting with lawyers, social workers, psychologists and perhaps be placed in foster care.
Myth No. 3. A letter or an e-mail expressing your wishes is good enough. Wrong again. The only way to appoint a guardian is in a will or standby appointment document. Informal writings and requests carry no weight.
Myth No. 4. There is no need to talk with the guardian. This misconception can cause very unfortunate mistakes and hardships. You should ask anyone you are considering if he or she is willing to serve and give him or her the opportunity to ask questions. Very importantly, they may want to know what financial means will be available for the child’s support and education. The person you name may not be able to raise your children because of the demands of work, their own medical issues or extended family obligations.
There can be more than one guardian: One can be appointed for the personal custody of the child and another can be appointed for the child’s property. Guardianship is a cumbersome and expensive way to manage financial affairs. I always recommend a trust for the minor children instead of guardianship which, by the way, ends when the child attains age 18. From then on any property left to a child is exclusively owned and controlled by the child which is probably not a good idea.
Since July 1, 2002, Pennsylvania has had a law which allows parents to sign a document designating a standby guardian for their child or children in the event the parent(s) become incapacitated. The guardianship is not activated until a trigger specified in the document occurs, such as a health care professional certifying that the parent or parents have actually become incapacitated. At that point, a notice of the Standby Guardianship must be filed in court. The petition can be filed at anytime prior to the triggering event as well.
This is a missing piece in many estate plans. If you have minor children and have executed a will, you probably named guardians for your minor children in case you die. But what if there is a car accident and the parents are incapacitated – perhaps just for a period of time. Parents and children are taken to the hospital by ambulance. Neither parent is conscious.
Who can make medical decisions for the children? If the children are not badly hurt and can go home, who takes care of them? Who is in charge?
The parents have powers of attorney and health care directives. Their named agent steps in for them, but there is a void for who has authority and custody of the children.
Absent a standby guardianship document, the only answer at this point is to have a judge adjudicate Mom and Dad as incapacitated and appoint a guardian for children. This is expensive, time-consuming, difficult and unwieldy.
The better plan is to have formally named a Stand-by Guardian which allows parents to appoint temporary guardians for their children. These Guardians can begin acting only after as specified triggering event. For example, the triggering event could be the “incapacity of both parents as designated by their attending physicians”. Triggering events are not listed or suggested in the law; it is up to the parent to make the list of potential events. The Standby Guardian would have all the powers to make medical, legal and financial decisions for the children.
If the document is approved by the court before a triggering event occurs, the standby guardianship can commence immediately upon the triggering event and may continue to act until the child reaches 18 years of age. If the document is not approved by the court before a triggering event occurs, the standby guardianship can commence immediately but a petition must be submitted to the court for document approval within sixty days or else the standby guardian shall lose all authority to act as co-guardian or standby guardian. If the petition is filed within 60 days but the court does not act within the 60-day period, the authority to act as guardian is temporarily continued until the court orders otherwise.
Seems obvious, doesn’t it? But many estate plans have this piece missing. Does yours?