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Choosing a Guardian for Minors

Robin Burner Daleo • Apr 23, 2024

Question:

My wife and I are in our mid-forties. We have two children ages 10 and 13. Should anything happen to my wife and I, how can I ensure that my sister is given legal custody of my children?

Answer:

No matter how young you are, if you have minor children, it is a good idea to establish an Estate Plan which includes a designation of a guardian for them in the event that both you and your spouse pass away.

Typically, we advise our clients to name guardians for their minor children in their Last Will and Testament. Through your Wills, you and your wife have the ability to designate both a guardian of the person and a guardian of the property for your children. The person you wish to serve as guardian of the person for your children will be responsible for their everyday care. In designating your sister, she would be responsible for providing your children with food, shelter, clothing as well as making decisions about their education, medical care, and religious instruction. The person appointed as the property guardian for your children will have the responsibility of the overseeing and managing of the monies and/or property that is left to your children. You can designate the same person or people to serve in both capacities. You and your wife should also consider designating successor guardians for your children, in the event that the primary designee (your sister) predeceases or cannot care for your children

If both you and your wife were to pass away, it would be up to the Surrogate Court to formally appoint a guardian for your children in accordance with Article 17 of the Surrogate Court Procedure Act. In choosing a guardian, you should be sure to consider who is most suitable for your children. Once a minor child reaches the age of fourteen, the Court will grant them great deference and appoint a guardian based on what is in their best interest taking their preference into account.

Once you choose a Guardian you should inform them of your choice and make sure that they are willing to act in that capacity should the need arise. Make sure that the guardian(s) knows that they do not have authority to act as guardian until they are formally appointed by the Court and familiarize them with the steps they will have to take in order to be appointed. Your designees should know where to find your original Wills, as they will have to file them with the Surrogate’s Court within three months of your death. If they fail to do this, the court presumes they have renounced their appointment.

Another option available through the Surrogate’s Court Procedure Act, is the ability to designate a Standby Guardian for minor children through the execution of a document called a Designation of Standby Guardian. By signing this document, you can designate and authorize the appointment of a guardian who will take over the care of your children in the event of your physical incapacity, mental incapacity, or death. From the time your designated guardian begins acting, they have sixty days to petition to Surrogate’s Court for appointment as legal guardian of your children. The Designation of Standby Guardian document is typically executed when the children’s only parent is seriously ill or in a dangerous line of work, such as the military.

Planning for the care of your children should unquestionably be part of your Estate Plan. An experienced elder law practitioner can aid you in creating and executing Estate Planning documents necessary to ensure that the wishes you have for the care of your children are carried out upon the death or incapacity of you and your wife.

By Robin Burner Daleo, Esq.

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May is National Elder Law Month

by Robin Burner Daleo • 03 May, 2024

May is National Elder Law Month, for that reason we have decided to switch from our normal format and answer a question that we are oftentimes asked in our practice, “What is an Elder Law Attorney and why do I need one?” Answer: Elder Law is a fairly new and unknown area of the law. As baby boomers and their parents’ age, they are living longer and oftentimes, living with chronic medical conditions. As the cost of long term care continues to spiral out of control and families struggle to meet the needs of their aging members, an experienced Elder Law attorney can help you and your family members establish an estate plan that maximizes protection of assets while ensuring that your loved one has the best care available to them should they face a health crisis. While it is always best to plan proactively, Elder Law attorneys are adept at crisis planning and oftentimes can provide a solution which can preserve assets or save taxes where others you have consulted have told you that no solution existed. Elder Law attorneys must be familiar with multiple areas of the law - contract law, estate planning, trusts and estate administration, Medicare, Medicaid, health care insurance regulations, Public Health Law, Mental Hygiene Law, the Internal Revenue Code & State and local tax issues. In each instance the issues that we deal with are fact sensitive and the clients must be willing to give us the information that we need to formulate the Elder Law plan. This in itself is oftentimes a struggle as the clientele that we deal with tends to value privacy and are oftentimes reluctant to divulge information regarding their assets and private family issues. The various disciplines that make up the Elder Law practice are in a constant state of flux. As a result, it requires the Elder Law attorney to spend a great deal of time reading current journals and cases and continuously taking legal education courses. In addition, many Elder Law attorneys meet in informal study groups to read, understand and strategize. As the facts change, there will likely be different solutions for each client. What works for one client may be totally inappropriate for another. For instance, in one day, we may see two different clients, both clients are 86 years old, own their own homes, and need long-term care. Client A has a daughter, age 55 and Client B has a niece age 55. Client A, on the eve of going into a nursing facility, is advised to transfer her home to her caretaker daughter, who lives with her and has lived with her for more than 2 years. The transfer does not make Client A ineligible for Medicaid. Client B cannot follow the same plan because her niece is not her child. There are no exceptions for transfers to caregiver nieces. Because we do not have an exempt transfer available to us for Client B I advise Client B to sell the home and advise her that even though no pre-planning has been done, we will likely be able to save more than sixty percent of her aunt’s assets by engaging in crisis planning. Remember - one size fits all – is not the rule. Your Elder Law plan is personal, fact sensitive and requires a careful review of all of the facts and circumstances. By: Robin Burner Daleo, Esq.