New York Estate Planning & Elder Law Blog
In today’s society it is common, to say the least, to have a single parent household. Most of the time the parents are divorced or simply not together and one of the parents is less hands on than the other. Perhaps this is a because of distance, as the other parent may live quite some distance away or perhaps due to work obligations and can only physically parent a month or two out of the year. Then there are truly single parents insofar as the other parent has passed away or perhaps the other parent is just not in the picture for any number of reasons or there is a history of domestic violence and the other parent’s custodial rights are extremely curtailed.
For this population, their will serves not only to memorialize how they want their possessions and property to be disposed of, it also allows for them to indicate who they want to take custody of their children. To be sure, if the other parent is named as the father/mother to the child and the primary custodian passes away, the other parent has the legal authority to take custody, absent good cause. There are, however, other ways of addressing these concerns outside of the four corners of the primary custodians will. Enter the standby guardianship which was specifically designed in response to such situations.
SUPERIOR TO CUSTODY ORDER
New York has a standby guardianship law, which creates a safety net for the children to insure that their basic everyday needs and well being is met in the event the primary custodian cannot care for them. New York was the first state in the nation to create such a law, which was originally designed to address the needs of those suffering through the AIDS epidemic in the 1980s and 1990s. It’s utility is obvious. For single parents who may have a terminal illness and are concerned more for the future of their children than anything else, the standby guardianship may indeed be the perfect legal device.
While there is a need for a standby guardian to obtain court approval via a Court Order, they have some breathing room to insure that their actions are legally proper and the immediate needs of the children are met. If the parent has a progressive terminal illness or condition, they may not be able to care for the child even before they pass away. The standby guardian can be there to do what needs to be done. In many ways, the vehicle of the standby guardian is superior to a typical custody Order, as a custody Order may entitle the non-parent custodian a right to custody in the future, even after the parent is able to reobtain custody, on grounds that the non-parent custodian stood in loco parentis. Absent a standby guardian, after a single parent passes away, it is likely that the children may go into foster care, which will only magnify any emotional distress the children are already experiencing. The standby guardianship can go into effect at any time that the parent and standby guardian define in the guardianship documents; perhaps on a date certain or if the single parent’s medical condition deteriorates past a certain point.
As with any decision regarding such important issues it is best to consult with an experienced estate planning attorney to insure that your intentions and decisions are given full legal effect.