** This article has been revised from its original version which was published on January…
If you have minor children then it is highly recommended that you designate a standby guardian by executing a Designation of Standby Guardian under SCPA 1726(3), and that you execute a Last Will and testament that nominates a permanent guardian for your child.
If your child’s other parent (biological or adoptive) survives you, then his/her other parent will be your child’s natural guardian of the person and can make decisions with regard to the personal needs of the child, such as health care decisions, where the child resides, etc.
If you are the sole parent, or if you die at the same time as your child’s other parent, then upon your passing a court will need to appoint a guardian of the person for your child. If your child owns an interest in property outright greater than $10,000, such as through inheritance, then a guardian of the property will need to be appointed by the court, regardless of whether there is another parent available.
A Daunting Task
The selection of a guardian for your child can be a daunting task, but it is an important process that should be given much consideration to ensure the well-being of your child.
From a legal perspective, the first thing to consider is the legal eligibility of a guardian or successor guardian to serve.
New York State Surrogate’s Procedure Act
Under section 707 of the New York State Surrogate’s Procedure Act, a person who is eligible to receive letters of guardianship cannot be:
- An infant (under age 18),
- An incompetent (declared incapacitated by a court),
- A non-domiciliary alien except one who is a foreign guardian as provided for under the law,
- A felon (convicted of a felony in any jurisdiction. This means the person was either found guilty or plead guilty), or
- One who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit for the execution of the office.
The requirements listed in 1-4 are objective and you should be able to determine if the person or people you are considering selecting as a guardian or successor guardian are legally eligible to serve. However, the requirements in number 5 listed above are more subjective and require serious consideration. It is important to confirm that none of the legal requirements listed will be of any concern with whomever you are considering nominating as guardian or successor guardian.
No one-size-fits-all type of guardian
Beyond the legal suitability of the guardian, it is important to know that there is no one-size-fits-all type of guardian. You don’t necessarily need to select a couple or someone who is closely related, or even related at all, to you or to the child. It is important to consider the potential guardian’s values, age, health, financial and/or familial constraints, as well as geographic location. It is recommended that you have a candid conversation with whomever you may be considering selecting as guardian or successor guardian to confirm their ability and willingness to serve in that role.
If the potential guardian or successor guardian is married or in a committed long-term relationship, you should understand that this spouse/partner will play a major role in your child’s life. So, it is important to also have a conversation with the potential guardian’s spouse/partner.
You should seek counsel with any questions regarding selecting a guardian and successor guardian, and discuss the possibility of establishing a trust for the benefit of your child that can be managed by a trustee instead of appointing a guardian of the property to handle any property your child might inherit as a result of your death.