Guardianship Designation in New York: Protecting Minor Children

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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? 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.

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.

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.

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.

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