One of the most challenging and often contentious decisions that parents of minor children must make is who will be their minor children’s standby guardian(s) in the event of an accident. While the possibility of this happening is not something anyone wants to think about, it is an issue that parents must address.
Designating a guardian to care for minor children is an essential part of any parent’s estate planning documents; some may argue it is the most crucial part. Standby Guardianship can assist parents in developing a more comprehensive plan for the care of their minor children. It is common practice to name a guardian for a minor child in a parent’s will and testament. This provides parents with peace of mind.
What is a Standby Guardian in Virginia
What happens if a parent is still alive but incapacitated or unable to care for their children? In such a case, who will be able to take care of the child legally? The solution to this all-too-common scenario is to establish a standby guardian.
In Virginia, a “standby guardian” is defined as someone designated in writing or approved by the court that temporarily assumes the duties of a guardian of the person and guardian of the property.
What is a “Triggering Event”?
A standby guardian is designated to serve if and only if a specific “triggering event” occurs. A triggering event could be the incompetence or death of a qualified parent. A “qualified parent” is a parent who diagnosed, in writing, by a licensed physician as having a progressive or chronic condition. The condition causing injury, disease, or illness from which the patient cannot recover to a reasonable degree of medical probability. Once the specific triggering event has occurred, the court appoints the named standby guardian to serve.
It is best to name the person you want to serve as a guardian ahead of time. Failing to name a guardian in an estate plan is often a recipe for conflict. Sometimes multiple family members feel that they are the best option for the child. However, if parents aren’t consistent about their desires, a custody dispute can ensue.
Planning For The Future
A standby guardianship allows a parent to plan for the future care of a minor child without giving up parental or legal rights to the child. It also gives the standby guardian the authority to act under the known wishes of a qualified parent regarding the care, custody, and support of a minor child. To appoint a standby guardian, a parent must write down their desire to appoint someone to fill this role. When a guardian is required, someone, most likely the standby guardian, petitions a court to set the standby guardian named in the document. A hearing will be held if a relative demands one within ten days of obtaining notice of the petition’s filing.
The standby guardian serves until a permanent guardian is appointed. Often this is the same person, but sometimes it makes more sense to appoint someone local to give the intended permanent guardians time to make arrangements. However, the court is more likely to follow the wishes of the qualified parent if they believe it is in the child’s best interests.
It is impossible to prepare for any eventuality in life. Using guardianship language in both your will and a standby guardianship document will make preparing for your children’s future care easier. As a parent, you cannot predict or control every possibility that will occur in your child’s life. However, having a plan in a time of crisis is something you can handle. Contact us about how we can provide this peace of mind for your family.