Guardianship of a minor

potential guardianship for a minor, custody instruction

Do you have children?

Having children changes one’s outlook on life. Children assume a centrality and importance in our lives that non-parents cannot possibly imagine. What if a parent is suddenly incapacitated? Or an illness, such as COVID-19, strikes adults hardest and leaves orphaned children in its wake? What if one of those children is yours?

It is not uncommon for parents to be jointly involved in an accident. One parent dies. The other sustains injuries rendering them incapable of caring for themselves, much less their children.

Guardianship is a sensitive matter. No one enjoys contemplating the unthinkable – that you could die before seeing your child graduate from high school. But parents do die prematurely – from accidents, cancer, heart attacks, diabetes and, yes, COVID-19. Do not leave your relatives (or the state) in the lurch. This is an excellent time to discuss guardianship provisions with your lawyer.

Fundamental questions

Begin with the big questions. Who do you trust to raise your kids? Would they shoulder that responsibility eagerly or resent it? Do they have the space? The financial wherewithal? Do your children adore them? If, like so many parents, you answered, “My parents!”, have you fairly weighed their age, retirement goals and well-being?

Potential guardians, custody instruction

Be honest with yourself about potential guardians for your children. Put your thoughts in writing. And make sure funds are earmarked and sufficient for your children’s care and education – using life insurance policies, and clear instructions in your Will. Be aware that nominating someone as candidate for guardian of your children, does not make that candidacy binding. Guardianship decisions are determined by Child Protective Services– after you die. But your documented instructions weigh heavily.

Be cognizant of the law. You cannot carve out another parent if he or she has joint custody and is legally competent to raise your child, just because you are no longer on speaking terms. By law, a surviving parent who has joint custody of a child assumes full custody of that child when the other parent dies. However, the surviving parent does not automatically assume custody if you lived apart and retained exclusive custody of your children. The statutory framework is as follows:

If both parents have custody and one parent dies, the other parent is automatically responsible for the child. If a parent who had sole parental responsibility dies, the child protective services transfers parental responsibility to the surviving parent or appoints a guardian, whomever is better suited to safeguard the best interests of the child. Should neither parent survive or be capable of caring for the child, Child Protective Services (CPS) appoints a guardian.

Secure your children’s future. Do not leave them to chance

Your children are your most precious possession. They are the reason you rise each morning and work tirelessly until retiring at night. You do it for them, for their future. Do not leave your children at the mercy of Child Protective Services if you die. Express your guardianship preferences now. Express them in writing. Make sure the prospective guardian has no misgivings, and that you have ensured the means for paying for childcare and secondary education – even without your continued salary. I can help and formulate your wishes precisely.