Media Type: Alert
A common reason parents of young children consider estate planning is to ensure their children are properly cared for in the event that either or both parents pass away. Most parents of young children understand the importance of executing a Will to designate a Guardian. However, since a Will has no effect during one’s lifetime, most parents overlook the importance of designating a Standby Guardian to care for their young children in the event of disability, illness or injury. Note that a Guardian (who can be a family member, friend or other individual) is a separate designation than a Trustee.
Consider what would happen if a parent is living but becomes incapacitated or otherwise unable to care for a minor child. Under those circumstances, to ensure that the appropriate person is placed in charge of their children, parents should consider executing a Standby Guardianship document. As described below, proper planning helps maintain family harmony, keep legal fees to a minimum and avoid the need for government involvement. This is an example of why “estate planning” is often about lifetime planning in addition to planning after death. Moreover, as a parent myself I find comfort knowing that my son will be properly cared for in the event my spouse and I end up in the hospital or are otherwise unable to care for him ourselves during our lifetimes.
Ideally, it is best to provide for the Guardianship of minor children in both a Will and in a Standby Guardianship document. While these types of discussions may be difficult, planning for the continued care of young children can limit future family disagreements and unnecessary legal fees. If parents become disabled without the proper paperwork in place, family members will likely need to petition the Court for a temporary Guardianship. This process can be very expensive and time-consuming. In addition, several different family members often believe that they are the best choice for the temporary care of the child and a custody struggle may ensue. As alluded to above, proper planning provides a sense of comfort knowing that the individual designated as the Standby Guardian has the authority to care for the minor children in a manner consistent with the parent’s wishes and control.
As you can imagine, discussions surrounding the Guardianship of minor children often tend to be emotional and new parents often worry how the designation of a Standby Guardian affects their parental rights. The designation of a Standby Guardian does not affect the custody of a child and the parent will not lose his or her parental rights simply by executing a Standby Guardianship document. The role of a Standby Guardian does not commence generally until neither parent is able and willing to care for a young child. Typically, this occurs when the Standby Guardian receives written notice from a doctor confirming that such parent has become mentally incapacitated or otherwise unable to care his or her children.
Once the Guardian receives word of the applicable parent’s incapacity, the role of a Standby Guardian in many states, including Maryland, will continue for a period of up to six months. From a practical perspective, this means the appointment of the Standby Guardian is time limited by its nature. If the incapacity of the parent continues for an extended period, the Standby Guardian is required to seek judicial appointment from the Court or the Guardianship will terminate. Additionally, if the parent regains capacity the Guardianship can be revoked simply by notifying the Standby Guardian in writing.
The Standby Guardian may be the same individual named as the Guardian (or Trustee) under a Will but more often than not this is not the case. In fact, certain considerations, such as geography, play a larger role when selecting a Standby Guardian because the appointment is temporary. While parents may be willing to name out-of-state relatives or family friends as permanent Guardians under a Will, often times parents want to designate an individual who lives nearby as the Standby Guardian to ensure that the child remains close.
Regardless of age, family structure or wealth, if you are a parent with young children it is important that you plan for disability or incapacity. An important consideration is who you would like to temporarily care for your minor children if you were unable to do so. If you who would like to learn more about Standby Guardianships, or address any other questions in regards to your personal estate planning needs, please contact a member of the Stein Sperling’s Estate Planning Department at (301) 340-2020.
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