April 14, 2020
What Happens to my Children if I am Seriously Sick or Incapacitated?
Unsurprisingly, the birth of a child is often a, if not the, key motivation for a person to get serious about estate planning. As the parent of young children myself, I can speak to the driving desire to make sure that my children needs will be met, with exception, no matter what else might be happening in my family's lives or in the outside world. The weight of that feeling of responsibility is profound, and, from my experience, has been shared by every parent I have ever met.
How each parent deals with that feeling of responsibility may vary from parent to parent, but it often involves the creation of a Will; perhaps for the very first time in that parent's life. Why? Because there is a general understanding in our society that creating a Will allows a person to name one or more Guardians for their minor children; people who are hand-selected to raise our children and guide them toward adulthood if we cannot do it ourselves.
However, there is an important limitation on the appointment of Guardians by a Will. That appointment is only effective when the parent has died, after the Will is recorded, and after the Court appoints the named Guardians. What happens if the parent is not dead, but is only incapacitated, or seriously ill? A Will, even one with appropriate Guardian provisions, does not have an answer for that particular question.
The default answer to that question is that a court will appoint someone to assume the custody of minor children that lack parents or other guardians, but that process takes time and money, and, importantly, the children's parents will often have little ability to shape the court's ultimate decision. For many parents, that process is not a satisfactory answer to the problem. Luckily, many states, including Virginia, Maryland, and the District of Columbia, have seen fit to offer an alternate solution: The Standby Guardianship.
In simple terms, a Standby Guardian, is a temporary, emergency, legal guardian for minor children. Standby Guardians are appointed by parents through the use of a legal document called a "Designation of Standby Guardian," which can name both initial Standby Guardians as well as back-up/successor Standby Guardians. The Designation of Standby Guardian will also identify when the Standby Guardian's authority becomes effective (sometimes called a "Triggering Event"), how long that authority will last, and how, or if, the Standby Guardian's authority can be extended for an additional period of time by a court order.
While it may vary from state to state, Triggering Events will typically include both incapacity (loss of the ability to make an informed decision) and debilitation (the inability to effectively parent for an extended period of time as a result of disease or injury). Meaning, for example, if a parent was hospitalized for an extended period of time due to a serious disease, or was diagnosed with dementia, it is likely that the authority of a Standby Guardian would be triggered and, as a result, made effective. Similarly, in most states there will be a period of time, starting on the date a Triggering Event occurs, during which the Standby Guardian can assume full guardianship authority over the minor children without any need to involve the court system. For example, in Virginia, that time period is thirty (30) days, and the Standby Guardian only needs to seek the approval of the court if the Standby Guardian needs the authority over the minor children to extend beyond the initial thirty (30) days.
Taken as a whole, a Designation of Standby Guardian is an irreplaceable and essential legal instrument, and should be a part of every parent's estate plan. If you would like to find out how a Standby Guardian can be implemented into your estate plan, please reach out to our office and the attorneys of Arlington Law Group will be happy to assist you.