Guardianship Designation in New York: Protecting Minor Children

Why is Designating a Guardian Vital to the Safety and Wellbeing of Your Minor Child?

It can be incredibly distressing for most parents to consider what would happen to their child if they were no longer able to care for them due to death, incapacity, or another unanticipated calamity. 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.

By drafting appropriate guardianship plans, you can give your family the peace of mind that comes with knowing your children will be taken care of by a trusted individual of your choosing if you become unable to parent. However, it is essential to create these guardianship documents with the assistance of a knowledgeable New York estate planning lawyer to ensure they will function properly should they ever be required.

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.

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.

How Can Our Law Firm Assist You?

Designating a guardian for your minor child is not a task that should be undertaken lightly. It requires careful consideration and in-depth knowledge of New York’s laws to ensure your plans protect your children in the event of your absence. Our skilled lawyers at Davidov Law Group can evaluate your situation and help you create a guardianship plan that is right for your family. We take pride in building strong relationships with our clients because we know an estate plan is only effective if it continues to grow with you as your life circumstances change. Contact our law firm today at 516-253-1366 to schedule your assessment to begin your planning process.