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March 2013 / Bronx/​Riverdale Family / Brooklyn Family / Long Island Family / Manhattan Family / Queens Family / Staten Island Family / Columnists / Ask an Attorney

How to ensure kids will be protected when parents die

How to ensure my kids will be protected

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I want to make sure that someone is appointed as the guardian of my minor children if both me and the child’s mother pass away. How can I ensure that my kids will be protected?

Many of my clients are new (and not so new) parents who want to ensure their minor children are cared for in the event that both parents die. It is every parent’s right, but also their responsibility, to take care of this issue and to express their wishes in legal writing. There are two circumstances to consider: what would happen to the care and raising of minor children if both parents were to die, and what would happen if both parents become disabled while the children are minors. This is critical for single parents, and stepparents or non-biological parents who live with but have not adopted the child.

The procedure to name a guardian for minor children is to nominate an individual or individuals in your will to take legal custody of your child. This can, but does not need to, be the same individual as the minor’s trustee, who will oversee the management of any finances left to the minor child.

A guardian nomination is just that — a suggestion to the court that, in most cases, will be upheld if the individual qualifies as a fiduciary, meaning a person in a position of trust. In the State of New York, a person is not eligible to be a fiduciary if he is a “non-domiciliary alien […] except [….] one who shall serve with one or more co-fiduciaries, at least one of whom is resident in this state,” S.C.P.A. 707. That said, the court may still appoint a non-domiciliary alien or a New York resident as a fiduciary in its discretion. An individual who is mentally incompetent, a felon, or who otherwise “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,” is also unfit to serve as a fiduciary, as is anyone else who is ineligible in the court’s discretion. The court may also declare as ineligible to act as a fiduciary “a person unable to read and write the English language.”

What does this mean? For international clients, it means that while they should nominate the guardian of their choice based on substance (i.e., their true qualifications to provide the best care for their children). The choice is a mere nomination and is subject to the judge’s approval and order of who will raise a child and have legal custody. Second, for the many ex-patriates living in New York City, it means that extra care must be taken to communicate to the court why the appointment of a non-domiciliary individual as guardian is in the best interest of your minor children. These specifics can be spelled out in the will itself or in a separate writing that should be properly executed.

The other thing to consider is that many non-U.S. citizen parents reside in the U.S. with no real intention to leave, but are insistent that their children be raised in their home country. The thing they fail to consider is that a child who is raised in the U.S. her entire life may not want to leave the U.S. when she is older, because her entire life is based here. It is a very different situation when the child is an infant or toddler and could easily adjust. If a parent wants the child to be repatriated to the home country, the child’s citizenship may be a factor bearing on the judge’s decision. If the parent applied for or obtained dual-citizenship from the home country for the child, this may be deemed evidence by the judge of the parents’ intent for their child to keep a connection to the parents’ country of origin. It has the added impact of providing a basis for which the guardian in the home country can request assistance from his own state department or diplomatic agency to repatriate the child. In the absence of dual citizenship, the home country’s state department lacks standing to assist. This, together with basic border-control issues, poses an obstruction to relocating a child to another country either temporarily, pending the proceeding, or permanently.

In short, international clients with minor children living in the U.S. must pay particular attention to making clear in the will who will raise their child and where.

Alison Arden Besunder is the founding attorney 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.

Updated 8:31 am, April 2, 2013
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Reader feedback

Engr.Peter Foxs from Reply says:
From Engineer Peter Foxs,
Department of Budget and Planning
Ministry of Petroleum,
Accra Ghana

REF: URGENT CONFIDENTIAL BUSINESS
PROPOSAL.
Most competent people are choosen for competent jobs and
assignments, and with that due respect have we also choosen to
select you and contact you on this very confidential matter.

Our Accra Ghana Chamber of Commerce and industry offers variety of
names of notable people from your part of the Globe.

That was where I got your information from. Therefore, after due
deliberation with my partners, we decided to forward to you this
proposal. We believe that you would be in a position to help us in
our did to transfer the sum of US$41.5M(Forty-0ne million, five
hundred thousand dollars only) into a foreign account.

We shall make it 100% legal as much possible as you would want.
We are members of the special committee for budget and planning
of the Ministry of Petroleum. This committee is principally
concerned with contract appraisals and approval of contracts in
order of priorities as regards CAPITAL PROJECTS of the
Government of Ghana.

With our positions, we have successfully secured for ourselves the
sum of Forty-one Million, Five Hundred Thousand United States
Dollars(US$41.5M). We are working with the present Democratically
elected Government in my country, and we are seeking the support
of Foreign Government to win the next election coming up, which
the race has started.

So they have given directive to all Federal
Parastatals to settle all Foreign Contractors being owed for contract
that they have done.

Therefore, our plan is to include your name as one of the
contractors being owed in our corporation. What we need from you
is to provide a safe Account into which the funds will be transferred
since Government Officials in my country are not allowed by our
laws to Operate Foreign Accounts.

It has been agreed that you will be compensated with US$8.3
Million of the remitted funds. US$31.125Million belongs to us, while US$2.075Million will be set aside to offset expenses and pay the necessary taxes.It may interest you to know that two years ago a similar transaction was carried out
with one Mr. Patrice Miller, the C.E.O of Crane International
Trading Corporation at number 135, East 57th street, 28th
floor,New York 10022, with(212)308-7788 and Telex Number
6731689. After the agreement between both of us in which he was
to take 25% of the money as his share, the money was duly
transferred into his Account.

We were disappointed on our arrival in New York as we were
reliably informed that Mr. Patrice Miller was no longer on that
address while his Telephone and Telex Numbers have been
reallocated to somebody else. That was how we lost US$27.5M to
Mr.Patrice Miller.

This time around we would not want you to be like that. We need a
more reliable and trustworthy person and a reputable Company to
do this business with, hence we contacted you.

So if you can prove yourself to be trusted and interested in this
deal then we are prepared to do business with you.What we want
from you is the assurance that you will let us have our share when
this amount of US$41.5M is transferred into your account.

If this proposal satisfies you, please contact us, so we can advice
you on the modalities of the transaction. All modalities of this
transfer, have been worked out and once started will not take more
than 7 Banking days with the absolute support of all
concerned.This transaction is 100% safe and risk free now and after
the transfer.

Kindly treat this as a confidential matter and reply.
Best regards.

Engineer Peter Foxs,
Department of Budget and Planning
Ministry of Petroleum,
Accra Ghana
April 30, 2013, 5:15 pm

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