Have Dependents? Then Strongly Consider Standby Guardianships

March 14, 2012
300px Foster care length of stay Have Dependents?  Then Strongly Consider Standby Guardianships

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Today we discuss a strategy that is useful in case of what is likely the most devastating, worst-case scenario for many families – the unexpected and sudden death of parents or caregivers.

While we hesitate to even think about it, we must consider all possibilities in estate planning so that loved ones can be left to focus on mourning and healing, rather than worrying about what’s next.

You have most likely heard many times that it is essential to establish a guardian for your children or other dependents in your will.  However, this solution is perhaps inadequate.

The Will is Not Enough

For example, picture the scenario where a married couple goes out for a night on the town and leaves their two school-aged children at home with a babysitter, and are then killed or are rendered incapacitated in an accident on the way home.

Say the parents have wills that name guardians.  Unfortunately, this alone does not resolve the following issues:

  • Legally, listing a guardian in the will only serves as a “nomination” to the court.  The nomination is not approved by the court until after the will is accepted for probate by the county, and after a court hearing.  This process can take at least several days if not weeks.
  • The will only applies after death.  Any nomination made in the will simply won’t apply while a person is alive.
  • In most states, a temporary guardianship can be appointed by the court.  Most estate planning lawyers will have you fill out the appropriate forms in advance for quick filing after a premature death.  However, the court still must approve of the person nominated.

None of these scenarios answers the immediate question of where the children or dependent goes during the time between the death and the court’s approval of the guardian.  In many situations, the police have no alternative but to place the children into foster care in the interim.

Standby guardianships are a relatively easy way to help solve this and other problems.

Standby (or “Emergency”) Guardianships

Standby guardianships were originally established to help HIV and AIDS patients plan for the care of their children during extended treatments and care.  Now, the use of standby guardianships has expanded into less dramatic situations, such as when parents go away on a long vacation or if the child goes on an extended school trip.

At this point, just over half of U.S. states, including Virginia, Maryland, and Pennsylvania, allow parents or caregivers to appoint a standby or emergency guardian in advance.  The process tends to be much easier than other alternatives.  Basically, the parent names an “interim” guardian on a short form and has it notarized.

In states that permit them, the following apply when standby guardianships are used:

  • The parent can execute the standby guardianship at any time, but it will not take full effect until certain “triggering events” (such as a parent’s incapacity or death) occur.
  • The guardian’s authority over the child or dependent will only begin upon a triggering event.
  • The parent does not give up parental powers while alive.  Instead, the responsibilities are shared between the parent and the guardian.
  • The parent can terminate the standby guardianship once he or she is able.
  • Standby Guardianship can be established in one of the following ways:
    • In about six states, the parent must file a petition and a court hearing must be held before any triggering event occurs.
    • In about 17 states and DC (including Virginia, Maryland and Pennsylvania), the parent can sign a written designation signed by two witnesses which can be approved through a court hearing either before or after the triggering event occurs.
    • About 9 states allow the use of either of these methods.
    • Tennessee allows the parent to nominate the standby through a power of attorney without any court approval.

See more details in this article on standby guardianships from the Child Welfare Information Gateway, a service of the U.S. Department of Health and Human Resources (but be sure to check if this information is up to date in your state).

Once approved and a triggering event occurs, the standby guardian remains as guardian until a more permanent solution is approved in court.  Depending on your particular situation, preparing a will, the necessary forms for a temporary guardianship, as well as the forms to create a standby guardianship can all be helpful towards the court meeting your specific wishes.

Additionally, going back to our tragic scenario above, a standby guardianship would allow the police to legally deliver the children or dependent to the named individual immediately.

Comparing Standby Guardianships to Temporary Guardianships

  • As stated, the temporary guardianship requires the parent to give up her parental rights.   Parental rights are viewed as fundamental rights, so any court proceedings that result in their relinquishment will require much more formality and consideration.  In general, temporary guardianships are not granted without notice to the children’s close relatives and even the children themselves in certain states.
  • To terminate a temporary guardianship, the parent must apply and the court must approve of the termination, usually after a hearing.  On the other hand, in many states, terminating a standby guardianship is as simple as filing a form in court without any further judicial action.
  • Check your state law (or consult with an attorney) on practical matters that would be important to you, such as how long parental powers can be delegated (several states allow up to 6 months) and whether or not school districts will accept powers granted under a temporary guardianship to enroll a student.

Think About It

The goal of this discussion is to motivate you to think about planning for emergency, an anticipated illness or some unpredictable family disaster.  Standby guardianships can at the very least protect the needs of children or dependents in the immediacy after such crises.

In any event, while these shattering events are unlikely and hopefully never encountered, they most certainly should be considered and planned for in a complete estate plan.

 Have Dependents?  Then Strongly Consider Standby Guardianships
 Have Dependents?  Then Strongly Consider Standby Guardianships

Scott

Scott R. Zucker, Esq. is the owner of The Zucker Law Firm PLLC, located just outside the Capital Beltway in Annandale, within five miles of the City of Fairfax, the county seat of beautiful Fairfax County, Virginia. The firm focuses mainly on estate planning services for Virginia, Maryland and Pennsylvania clientele, and seeks to do so in an affordable and approachable way. People interested in learning more can contact Scott by phone or email.

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2 Responses to Have Dependents? Then Strongly Consider Standby Guardianships

  1. March 16, 2012 at 10:35 am

    Interesting article. What do Virginia courts count as a “determination of incompetance” under 16.1-352(B) though? Can this be the same as the triggerng event?

    • Scott
      March 16, 2012 at 4:43 pm

      Mr. Biddle–

      The Virginia Code specifically defines a “determination of incompetence” in Section 16.1-349. Basically, it is a doctor’s written determination that the parent is unable to make decisions or care for the child.

      The same section also defines “triggering events” and indicates that the determination of incompetence can indeed be the triggering event as long as it is either specified in the court order or a previously written designation of the standby guardianship.

      I hope this helps. Thank you for your question and for stopping by.

      Take care,
      Scott

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