What Every Parent Should Know About Standby Guardianship

This week’s “Where There’s a Will Wednesday” post is especially important for people with young children. Few life events make us think about doing “adult’ things more than becoming a parent. Every parent understands the immense responsibility inherent in taking care of their children. That responsibility often leads parents to think about the “what if” situations – what if you lose the ability to take care of your kids due to illness or a sudden accident? Who would step in to take care of the kids in that situation? How would they be able to do things like enroll the kids in school or talk to the kids’ doctors? Unfortunately, there just isn’t that much good information out there to help parents trying to answer these tough questions.

It can happen to your family

Even though most people think that they will be around to take care of their kids until they grow up, we all know or hear of families where a sudden accident or other event takes away both parents. While it is true that most parents will be alive and well to see their children become adults, a little planning can help prevent your children from being taken into the care of social services or strangers – or even people you know who you would absolutely not want to take care of the kids.

Understand the risk

While it may seem like a long shot, the consequences are serious enough that you must consider the real possibility of what could happen and ensure you’ve taken right actions to protect your loved ones. Let’s say you and your spouse have gone out to dinner together and left the kids with a babysitter. But on the way home, you’re in a car accident. The police will get to your house, find your children home with a babysitter, and have no choice but to take your kids into the care of the authorities (strangers) until they can figure out what to do.

If you haven’t left proper legal documentation, the authorities have no option but to call child protective services—that is, unless you’ve legally given them an alternative. This is true, for example, even if you have named godparents. You must give the authorities a legal basis for keeping your children with the close friends or family you designate. 

Without your action, when the babysitter answers the door, she’s in complete shock and willing to stay with your kids while the authorities find a relative to take them. Unfortunately, she doesn’t have the legal authority to care for the children—even temporarily—so the police have no choice but to call child protective services. These authorities will take your children into custody until they can locate and/or appoint the proper guardian.

Alternatively, maybe you have plenty of family who’d want to take custody of your children if something were to happen to you. Perhaps some of them even live close by, so the authorities could locate them easily. It may be that even more than one family member would want to take custody of your children (and the financial resources you’re leaving behind for them). We’ve seen what happens when well-meaning family members—who think they’d be the best choice as caretaker for their young relatives—go to battle in the name of love. It isn’t pretty. In such a situation, it could take years of legal fighting while the children are stuck in the middle. In almost every case, each side fighting for the care of the children feels certain they’re doing what the parents would’ve wanted and what’s best for the children.

Know your options and your responsibility

The sad thing is, this all can be completely (and very easily) prevented. Virginia Code § 16.1-352 authorizes the parent of a child to create a written designation of a standby guardian for that parent’s minor children. The standby guardian designation allows a parent to name exactly who they want to become the child’s custodian in the event of the parent’s death or incapacity (or any other specified event).

If a parent creates a valid standby guardian designation, then the named guardian then has authority to take custody of the children named in the document as soon as the triggering event occurs. This means no waiting on a court order or other judicial action granting the person authority to take custody of the kids.

Designating a standby guardian is one of the most effective ways to ensure that your wishes regarding the care and custody of your children will be honored in the event of your death or incapacity.

Many people think they’ve already done the right thing because they have a will that names legal guardians for their children. While a will can be used as a method to name a guardian for the children, the use of a will is limited. First, a will is only effective after a person dies – meaning that if the person becomes incapacitated then the guardian named in the will won’t have authority to take custody of the kids. Second, the guardian named in the will first has to get permission from the court before they have authority to take custody of the kids. This could mean waiting days or weeks before the court can fit the guardian into their schedule.

Disclaimer: This article is for informational purposes only and not intended as legal advice or to create an attorney-client relationship. Every situation is unique and consultation with an attorney is required before any specific advice can be given.

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