Many clients ask me what would happen to their children in their absence, either because the parents are away and can’t be reached, or are incapacitated, or have passed away. A previous column discussed the designation of a Standby Guardian under a law known as “Surrogate Court Procedure Act Section 1726.” This article discusses another tool in the estate planning toolbox: a designation of a “person in parental relation” under a separate statute.
What is a legal guardian and what are his or her responsibilities?
A legal guardian is not a child’s parent, but is an adult who has the same authority over a child as a parent. A parent might need a guardian for a child where: the parents have died, are sick, are in prison, or are too sick or disabled to be able to care for the child and make decisions for them. The designation is also useful for families with only one parent and when both parents will be traveling together. In many states, the enactment of these laws was to address the needs of parents living with HIV and AIDS, other disabling conditions, or terminal illnesses.
What laws permit a non-parent guardian?
Every state permits transfer of guardianship authority over a child from a parent to another adult when the child has no other parent available to assume responsibility for care and custody of the child. A traditional guardianship provides for the care of a child in the event of the parent’s death or permanent disability and is generally regarded as a permanent transfer of custody and authority from the parent to the guardian.
One recent approach to transferring custody is facilitated through standby guardianship laws. Many states developed these laws specifically to address the needs of parents living with HIV and AIDS, other disabling conditions, or terminal illnesses who want to plan a legally secure future for their children.
Surrogate Court Procedure Act or General Obligations Law?
Under the Surrogate Court Procedure Act, a parent can execute a written designation, signed by two witnesses, designating a standby guardian under certain circumstances. After the triggering event stated in the designation (usually death or disability), the designated guardian must file a petition seeking permanent appointment after a court hearing. Once activated, the standby guardian and the parent, while living, have concurrent authority.
However, the Act designation has its limitations: it expires 60 days after it is signed by the parent unless the standby guardian petitions to be appointed as permanent guardian within that 60-day time frame. For example, a parent executing a standby guardian designation in the ordinary course of executing estate planning documents would have to re-execute the form every 60 days. The designation would still serve as evidence of the parent’s intentions, which is given a strong presumption that a parent’s choice will promote the best interests of the child. Yet, it could be subject to challenge in a dispute over the appointment of a guardian. The diligent parent would then have to re-sign an Act designation every 60 days, which is impractical.
The alternative tool is a designation of a “person in parental relation” pursuant to a different statute, General Obligations Law Section 5-1551. This law allows a parent to designate another person to act “in parental relation” to a minor or incapacitated person. The “parental relation” designation lasts longer than the standby guardian — six months from the occurrence of a contingency stated in the designation, as opposed to 60 days from the date of signing. The designation of parental relations can be submitted to a child’s school, health care provider, or health insurer. The parent can limit the scope of the powers, and can grant any or all of the powers and duties pursuant to the Public Health Law Sections 2164 (immunizations) and 2504 (medical, dental, health and hospital services) and Education Law Sections 2 and 3212 (educational matters). The designation can be revoked at any time in accordance with the statute.
Although there is overlap between the two statutes, it is helpful to have both mechanisms available to address the situations that arise when custody over a child is needed in a parent’s absence. It is important to add one or both documents to your arsenal of estate planning documents.
Alison Arden Besunder is the founding attorney of the law firm of Arden Besunder P.C., where she assists new and not-so-new parents with their estate planning needs. Her firm assists clients in Manhattan, Brooklyn, Queens, Nassau, and Suffolk Counties. You can find Besunder on Twitter @estatetrustplan and on her website at www.besunderlaw.com.
