No one wants to think about what will happen to their child after they are gone. However, it is in the child’s best interest for the parent to designate a Guardian in the unlikely event that you will no longer be able to care for them. Guardians are assigned to children under the age of 18 who no longer have the parent make decisions on their behalf. Assigning a guardian may occur in certain cases aside from death, such as when the parent is absent for a long period of time or when the parent is no longer physically or mentally capable of caring for their child.
Since designating a guardian is an important decision that might impact the future of your child’s life, there are some crucial things to consider when deciding on who to choose. Here is more information on the process of appointing a guardian, followed by questions to think about when choosing the right guardian for your child.
Guardianship of a Child
In New York State, there are four types of legal guardians:
- Guardian of the Person: This type of guardian is responsible for the child’s health, education, and general well being.
- Guardian of the Property: Property entails the money left behind for the child, including investment and savings.
- Guardian ad litem: This is a legal guardian assigned to a child to represent them during a lawsuit or court case.
- Stand-by Guardian: A standby guardian is assigned to a child in cases when the parent anticipates that they will no longer be able to make decisions for the child in the near future, such as if their health is getting increasingly worse. It is also a person who can take the child immediately upon the parent’s passing, while the Court is assigning a permanent Guardian of the Person.
A person can be designated as the guardian of a child in one of two ways. First, a parent can select a person to be a guardian of their child and have this person named in a Will or a Standby Guardianship designation. A person named in a Will must be approved by a Family Court or Surrogate’s Court judge. Additionally, if the child is over 14 years of age and mentally competent, they must consent to have the particular guardian appointed.
Otherwise, in cases when a guardian has not been designated for the child, a person or a social services agency may request the judge appoint a legal guardian to the child through Petition for Appointment of Guardian, which can either be filed at the Surrogate’s Court or the Family Court. That being said, if there is property involved, you must go to the Surrogate’s Court since they are responsible for handling guardianships involving property matters.
Questions to Think About When Deciding on the Right Guardian
If you are thinking about a guardian for your child, you must consider who in your life will protect the best interests of your child. Here are some factors and questions to help you decide:
- Consider the person’s lifestyle and how closely it resembles your current lifestyle with your child.
- Do they have other dependents?
- Are they physically and mentally healthy?
- Are they in a long-term stable relationship?
- Do they practice a certain religion?
- Consider the person’s geographic location as changing locations for the child may cause more stress.
- Do they reside in a safe location?
- Would my child have to relocate?
- Would my child have to switch schools and make new friends?
- Consider the person’s as well as your own financial situation.
- What is their current financial situation?
- Are they financially stable enough to support both themselves and the child?
- Who will have control over the resources you leave behind, and how do you want them to be used?
Making Changes to a Guardianship Designation
Before your child reaches the age of majority, the circumstances involving the child’s guardian may change. For example, the designated guardian for your child may pass away. Similarly, you may change your mind about the assigned guardian if you believe said person is no longer capable of caring for your child. If you named the child’s guardian in your will, you would have to include an amendment to the Will designating the new guardian or write a completely new Will. You can always seek counsel to assist with updating your documents.
If the above information feels overwhelming, you can always consult a legal representative to help you decide on the appropriate guardian for your child. Sverdlov Law has an experienced team who can answer any of your questions in regards to the legal process of assigning a guardian. Sverdlov also specializes in trusts and estates and can help you draft a will to include your detailed wishes to protect your child’s future.
If you would like to discuss the next steps of your planning process, please call us at 212-709-8112 or book a free consultation HERE
Katya Sverdlov, CFA, Esq.
Sverdlov Law PLLC
30 Wall Street, 8th Floor
New York NY 10005
212-709-8112 – phone
718-228-5007 – fax