New York parents building an estate plan should not overlook one important piece, which is setting up a guardianship for their children. Guardianship allows someone to take legal responsibility for children if neither parent is available.
As your child’s parent, you make legal decisions on their behalf since they cannot. If something happens to you and your co-parent that leaves both of you unable to make these decisions, a guardian may assume this role.
Why guardianship may become necessary
Common reasons guardians take over include the death or incapacity of both parents. Guardianship can be permanent or temporary.
For example, if you and your co-parent are both killed in an automobile crash, guardianship will likely be permanent. However, if your co-parent passes away and you are seriously injured but expected to recover, guardianship may be temporary until you are healed and able to care for your children again.
New York law allows you to name a guardian in your will. When selecting a guardian, choose someone trustworthy and responsible. Remember that a guardian will have the same rights as you do, including the right to make medical, educational and legal decisions on behalf of your children.
It is best to speak with your proposed guardian before naming them in your will. Ensure that they are willing and able to take on this role.
Generally, a guardian should be someone you expect to still be available if something were to happen in several years. While you may trust your elderly parents to be your children’s guardian, they may no longer be available if the time comes. Consider appointing a co-guardian or backup guardian as an alternative if this situation arises.
What happens if no guardian is named?
When no guardian is named in a will and neither parent is available to take care of the children, the court examines who is available and appoints someone. This person might not be who you would have wanted, which is why naming a guardian in your will is so important to protecting your children’s future.