Guardianship Designation in New York: Protecting Minor Children

The Importance of Establishing Guardianship for Minor Children

Everyone hopes to outlive their children, but you also hope that they are adults and well established in life before you pass on. But what happens if you die while your children are still minors? While it can be temporarily uncomfortable to address these issues, making a plan for these worst-case scenarios is vital for the welfare and security of your child.

In situations where there are two parents, the other parent would naturally step in, but this isn’t the case for everyone. If one parent has already passed or is not a part of the child’s life, it’s important to think about who would talk over as guardian for your children. Learn more about how guardianship works in New York, including picking a suitable guardian and how guardianship is established.

Who is a Guardian and What Are Their Responsibilities?

A guardian is a person who is responsible for providing care, maintenance, and support to the minor individual under their guardianship. The guardian of a minor has the same rights as a parent to make decisions regarding their health care, education, religious upbringing, housing situation, and other essential matters. Any individual over the age of 18 with a sound mind can be appointed as a guardian. However, you should make your designation carefully after considering the potential guardian’s values, skills, resources, and availability, as well as the familiarity of the individual with your children. The court maintains oversight of the guardian’s actions, and guardians must file an annual report with the court to update them on the status of the protected minor. 

The duties of a guardian may vary depending on the type of guardianship granted, but some primary responsibilities include:

• For guardians of the person:
  • Providing proper care, maintenance, education, and support.
  • Supplying food, clothing, shelter, and necessities.
  • Authorizing medical, surgical, dental, psychiatric, and psychological care.
  • Ensuring the protected person is appropriately trained and educated.
• For guardians of the property:
  • Managing the individual’s money and property strictly in their interest.
  • Preserving and protecting the individual’s assets.
  • Creating an inventory of the individual’s assets.

How Guardianship Works in New York

Establishing a guardianship plan is a way to ensure that you have some say in who will take over raising your child if something happens to you and the other parent. This is done by naming someone, referred to as the guardian, to assume care of the child, who is called the ward. However, there are also other circumstances where guardianship may be needed. 

For example, if a parent abandons or neglects a child, is deported, or is physically or mentally unable to make decisions for the child, a guardian may be needed.

The court is tasked with appointing a legal guardian, and without a guardianship plan in place, your child may be placed in foster care or be put into the care of someone you wouldn’t have chosen. It’s important to understand that while you can make your wishes known through a guardianship plan, it’s not a guarantee. For example, in the state of New York, once a child is 14 years of age, they must consent to the appointment of the guardian. If your child doesn’t want your choice to be appointed, another guardian may be instituted instead.

What Types of Guardianship Exist in New York?

With the assistance of a knowledgeable estate planning attorney, you can create a guardianship plan that will safeguard your minor children, no matter what happens in the future. Several documents may be used to create a customized plan covering every eventuality. New York law makes provisions for at least three varieties of guardianship that can be utilized in different situations.

Standby Guardian

Emergencies can occur anytime and may impact your ability to be present or provide proper care for your child. By completing a Designation of Standby Guardian form, a parent can ensure that their child will receive immediate care from a trusted person without significant disruption if a specified event occurs. A standby guardian is an individual who is given temporary authority to care for a minor child while the parent or legal guardian is still alive, although the standby guardian may petition the court to make the arrangement permanent if the circumstances warrant it. 

The event that allows the standby guardianship to go into effect is known as a “triggering event.” Examples of triggering events may include:

• Administrative separation between the parent and child, including incarceration, deportation, detention, and other events.
• Doctor diagnosed mental incapacitation, which renders the parent unable to care for the child.
• Physical debilitation, such as terminal illness, that causes the parent to consent to the initiation of the standby guardian’s authority.

The parent can specify whether they want the named standby guardian(s) to be the guardian of their child’s property, person, or both. For extra protection, the parent may choose one or several persons to act as standby guardians, in case a named standby guardian is unable or unwilling to assume responsibility when the triggering event occurs. It is important to note that if this designation is being made in anticipation of a specific triggering event, the standby guardianship must be approved by a judge prior to the event taking place. After completing and filing their form, the parent or legal guardian still retains full parental, guardianship, custodial, or caretaker rights and can revoke or cancel the standby guardianship at any time. 

Permanent Guardian

When creating your estate plan, it is crucial to consider who will care for your children long-term if you should pass away unexpectedly. Your co-parent will generally retain the right to be the guardian for your minor children in this event without any action required from the court. However, appointing a guardian in your Last Will and Testament provides protection if you and your co-parent are both deceased before your children become adults.

You should discuss your decision with the person you intend to name as your child’s guardian to ensure they are comfortable with the role and understand any expectations you may have. You may also wish to speak to your teenage children about your choice and allow for their input, as children over 14 may be consulted by the court for their consent before a guardian is appointed.

Guardian of the Property of a Minor Child

New York state law aims to protect the finances of minor children from fraud or mishandling. If a child receives assets valued at $10,000 or more from an inheritance, lawsuit settlement, or another source, a guardian of the property must be appointed. The guardian, working in conjunction with the court, is tasked with managing the child’s money until they turn 18. The designated individual has a fiduciary duty to act in the child’s best interests, and they cannot withdraw any funds without the consent of the court.

Factors to Consider When Choosing a Guardian for Your Child

While any person who is at least 18 years old and of sound mind can technically serve as a guardian for your children, it’s important to choose who will fill this role very carefully. Taking care of a child is an enormous responsibility — as you well know — and the person you choose should be physically able to care for the child, mentally prepared, and emotionally mature and be financially stable enough to support a child.

It’s also a good idea to choose someone who already has a solid, positive relationship with the child, as this can help ease the transition. Many people choose to name the child’s grandparent, adult sibling, or an aunt or uncle as a guardian. However, you may also choose a more distant relative or family friend if you feel they would be better suited.

Remember to factor in parenting philosophies as well as cultural and religious differences. If you want your child raised in a certain culture or religion, it’s important to consider this when you’re choosing a guardian.

Creating a Guardianship Plan

If you need to create a guardianship plan, your first visit should be to an attorney. A lawyer can help you understand how guardianship works in New York and help you make a plan that covers any specific scenario. A guardianship plan can be written into a will or created as a separate document that goes into play with a triggering event, such as a death, incarceration, or illness.

It’s also a good idea to ensure that you discuss your wishes with the person you intend to name as guardian and the rest of your family members, so there are no surprises when and if the time comes. This also ensures that the potential guardian is aware of their responsibilities and has the opportunity to ask questions, express concerns, or let you know that they don’t feel comfortable taking on that role.
Remember that any guardianship plan you create will still have to go through the court system to be put in place, so it’s important that all parties understand what that entails.

Can Guardianship Be Temporary?

Yes, in some cases, guardianships can be temporary. This may be done if there are temporary circumstances that keep the parents from being able to care for and make decisions for their children. For example, if the parent is in the military and is being deployed, it may make more sense for a temporary guardianship to be established so that the child can stay behind where their friends and school are. When the parent returns, the guardianship would be ended, and they would resume responsibility and care for the child. A temporary guardianship may also be used if a parent is very ill or is being incarcerated. A temporary guardian is usually referred to as a “standby guardian” in the state of New York.

How Do You Change or Rescind a Guardianship?

If the guardianship has not been put into place and you just want to make changes to who your appointed person would be, you can do this at any time. All you have to do is create a new document and destroy the old one. If the guardianship is already in place and the guardian no longer wants to or is unable to continue to care for the child, they must file a petition with the courts. The courts will review the circumstances and appoint a new guardian, if necessary.

How Can Our Estate Planning Law Firm Assist You?

Creating a guardianship plan isn’t difficult, and it’s something that’s important to ensure your children are cared for and that you have peace of mind if something were to happen. Whether you need help creating a guardianship plan or you wish to petition for guardianship, Davidov Law Group can help. Call 516-928-6594 to schedule an appointment to go over your case with an attorney.