Before you and your spouse travel on vacation, you’ll be packing, buying sunscreen, and dropping the kids off with a trusted caregiver. But consider adding one more item to your to-do list: putting temporary guardianship and custodial arrangements into place for your minor children before you go.
Why? Because any number of situations can arise: you can be in an accident that renders you temporarily incapacitated. You could be temporarily detained at your destination due to a natural disaster for an extended period of time, potentially with limited or no communication to home.
A decade ago, New York State changed its standby guardianship statute to allow additional categories of persons caring for minors to designate future guardians for their children (or minors of whom they had legal custody). Previously, the law only permitted those parents or guardians suffering from a chronic or fatal illness to apply to the court for the appointment of a “standby” guardian. The expansion of the law now allows legal custodians and “the primary caretakers” of minors to name a standby guardian by a witnessed writing or by judicial application.
A “stand-by” guardian is a person whose authority becomes effective upon the incapacity or death of the child’s parent, or upon the consent of the parent. One of the benefits of this arrangement is that the parent does not relinquish control or authority over the minor child even after the stand-by guardian’s authority begins; instead, the parent’s rights remain concurrent with that of the standby guardian.
Standby guardians can be appointed by petition to a court or, somewhat more efficiently and less administratively burdensome, in a proper writing by the parents or parent. Usually, the standby guardians can act upon debilitation, incapacity or death of the principal (the parent), or under such other circumstances stated in the document, such as extended absences. The appointee must still apply to the court for a permanent appointment, however, the appointment by the parent is evidence of the intention of the parent. Following the petition, the court determines whether the permanent appointment of the standby guardian is in the best interests of the child.
A parent or legal guardian may designate a stand-by guardian through a written designation under the law. The written designation must: identify the parent, the child, and the person designated to be the stand-by guardian, as well as any alternate guardians. The designation must also state the parents’ intention for the stand-by guardian to become the child’s guardian if and when the parent becomes debilitated, unable to care for the child, incapacitated, or dies.
There are very specific notices and other procedures that must be followed when petitioning the court to affirm the designation made by one or both parents. Separate from the appointment of a standby guardian, when leaving minor children with a temporary caretaker, it is also a good idea to prepare and leave with the caretaker a medical authorization form. Such a designation can be helpful in the event of a medical emergency if you cannot be reached right away for a decision.
As with any legal documents, it is critical to consult with an attorney to assess how an appointment of a standby guardian and medical authorization can address your individual needs.
Alison Arden Besunder is the founding attorney of the law firm of Arden Besunder P.C., where she assists new and not-so-new parents with their estate planning needs. Her firm assists clients in New York City, Nassau, and Suffolk Counties. You can find Besunder on Twitter @estatetrustplan and on her website at www.besunderlaw.com.
