BY ANTHONY J. ENEA
As it becomes more and more apparent that we are living in an increasingly dangerous world, one of the most difficult and often contentious decisions parents of minor children will need to make is who will be the standby guardian of their minor children in the event of their demise. While the possibility of that occurring is not something one wants to dwell upon, it is an important issue that parents need address.
- Anthony J. Enea
I have sat through many consultations where a husband and wife could not agree upon one or two individuals to nominate as a standby guardian for their children. Inevitably, a point of the contention will be that one family member or friend is more suitable to handle day-to-day personal affairs, but he or she is not well suited to handle the financial affairs of the minor. Additionally, depending on the age of the grandparents, there will arise a conflict as to which set of grandparents (if any) will be selected. In many instances, the concern that not selecting your parents will be interpreted as a rebuke of their parenting skills often creates significant angst.
Before the decision is finalized, it is best for the parents of the minors to discuss the issue in great detail with the individuals they are considering as standby guardians. Some issues to consider are whether they are willing to assume the responsibility, where the children will be housed and educated, and what religious education the children will receive. The issue of what financial resources will be available to support and educate the children should also be addressed. Hopefully, once all of these issues have been addressed, the parents of the minors will then be in a position to document their decision.
In New York, the decision as to whom the parents will nominate as the standby guardian for their minor children in the event they are both deceased is documented in one”™s last will and testament or a separately executed and notarized document, commonly referred to as a “designation of standby guardian.” In one”™s last will, the language typically utilized merely states that in the event both parents are not surviving that they are nominating the named individual to be guardian and alternate guardian for their minor children.
In those instances where the parents believe that persons other than those they want to be the guardians for the minors are better suited to handle the financial affairs for the minors, they will designate those with the financial acumen to be the trustee of the trust created for the minor. Thus, if it is the preference of the parents, they can have separate individuals making the day-to-day and financial decisions for their children.
It should be remembered that the persons selected by the parents in their last will and testament will be given great deference by a court in the event someone other than the person nominated seeks to be guardian of the children. It should be noted that the parents”™ nomination of a standby guardian does not prevent someone else from applying to the court to be the guardian.
A written designation of a standby guardian can also be executed by a parent in New York. The designation must identify the parents, the child and the person designated to be the standby guardian as well as any alternate guardian. The designation will also provide for the appointment of the standby guardian in the event of the incapacity of the parent if it renders him or her unable to care for the child.
In conclusion, the necessity for parents of minor children to properly address the possibility that someone else may need to be responsible for the care of their children is self-evident. It is an issue that should not be placed on the back burner.
Anthony J. Enea is the managing member of Enea, Scanlan & Sirignano LLP, with offices in White Plains and Somers. Enea is a past chairman of the New York State Bar Association”™s Elder Law Section. He can be reached at 914-948-1500 or A.Enea@esslawfirm.com.
