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As Coronavirus spreads throughout the world, it is no longer a remote possibility that both parents can become sick and require quarantine from their children until well. It is important to designate someone who can take care of one’s children in case of emergency, but it is even more imperative in the situation we are currently facing.
Most parents are ill prepared for the care of their children if both are stricken with such a disease as COVID-19, or if a single parent becomes seriously ill. Even if this is a relatively unlikely scenario, the consequences can be extremely traumatic for children. They may be taken to Child Protective Services in the arms of strangers, and the person who will eventually care for them may be determined by a court, if the parents themselves are unable to care for them for an extended period.
By planning for this or other catastrophes, parents can have control over how their children are cared for in their absence, and avoid unnecessary trauma.
It is not enough simply to ask your neighbor to watch your children. If you are incapacitated, police may remove your children for their safety if there is no evidence that you entrusted your neighbor with your children. When your absence becomes extended, you need a caretaker to whom you have granted authority to make medical or educational decisions for your little ones.
Many states offer such measures through standby or temporary guardianship, custodial power of attorney, or delegation of parental authority. The state of New York provides statutory provisions to protect your children in emergencies.
This article will focus on providing for the physical care of your children, and will not cover the management of your children’s property. We will not discuss permanent guardianship, which is only necessary when both parents die.
What is Standby Guardianship?
A legal guardianship is a court-approved relationship between a child and a caregiver who is not a parent of the child. It assigns specific powers and duties to the caregiver to care for the child when the child’s parents are unavailable to assume the responsibility for his or her care and custody. Parents often designate a guardian in their will, or a separate guardianship nomination to provide for the care of the child in the event of the parent’s death. Because the guardian permanently takes over custody from parents in the event of death, this is referred to as a permanent guardianship.
A standby guardian receives custody of the children during the parents’ lifetime, allowing the parents to maintain authority over their children, even when the standby guardianship has commenced.
Each state has its own process and procedure for this. New York allows parents to nominate a standby guardian via written designation signed by two witnesses, without having to go to court. Under the New York Surrogate Court’s Procedure Act 1726, a standby guardian can assume guardianship when one of the following “triggering events” occurs: 1) death of the parent or other primary caretaker, 2) mental incapacity of same, 3) debilitation, defined as fatal illness or physical debilitating illness or injury, or 4) administrative separation, as when immigrant parents are forcefully separated from their children. New York requires a parent’s doctor to provide proof of incapacity or debilitation in writing.
New York’s standby guardianship law can be utilized only when a parent becomes terminally ill. When parents need to be quarantined or hospitalized without being terminally ill, a standby guardianship might not be the best tool. Still, legally assigning a neighbor or a relative living nearby as a standby guardian can give parents the relief that someone is available immediately, and prevents their children from being taken away from their home.
You can download a standby guardianship designation form based on SCPA 1726 HERE (You can also download “Designation of Standby Guardian” from http://ww2.nycourts.gov/forms/surrogates/guardianship.shtml). The document can be executed by being signed and witnessed by two adults who are not nominated as guardians. Each parent should prepare a separate document. Once a triggering event occurs, the guardianship is automatically effective for 60 days. If it needs to be extended, a temporary guardian needs to petition the court for permanent guardianship.
The standby guardianship can be easily revoked by notifying the guardian verbally or in writing, or by any other act that evidences an intent by the parent to revoke.
What is Designation of Person in Parental Relationship?
In New York, it is easier to trigger the Designation of Person in Parental Relationship than a standby guardianship. In this designation, parents can choose to allow authority to commence from the date of signature, from a specific date, or from a specific event, such as hospitalization of a parent. In the context of COVID-19, the designation might be a better tool to ensure the care of their children because parents may be absent long-term without being terminally ill. However, if the parents die, the designation is revoked, similar to a Power of Attorney, and the children will be left without a guardian until the court appoints one.
Since standby guardianship lasts beyond the parent’s death, parents in New York should have both standby guardianship and Designation of Person in Parental Relationship to cover all emergencies, from non-terminal illness to death.
The designation can last up to twelve months from a triggering event, and can be renewed indefinitely if parents are able to sign and notarize the document again. Unlike standby guardianship, it doesn’t transfer custody or guardianship, and only transfers certain parental powers to another person, so there are limits to what the designated person can do. For example, the designation does not authorize the person to travel with the children. It also does not give the designated person authority to consent to a major medical treatment, or withdrawal of life-sustaining treatment for the child. If such a decision needs to be made, and parents are unavailable, the person needs to petition the court for guardianship.
Only one parent needs to execute the designation unless there is an order of joint custody after a divorce. The parent and the designated person need to sign and date in front of a notary. You can download the Designation of Person in Parental Relationship form based on New York State General Obligations Law 5-1552 HERE (You can also download from https://ocfs.ny.gov/main/documents/forms_keyword.asp by typing in “4940” in search box).
Be Prepared in Advance
I cannot emphasize enough how important it is to have a plan to protect your children, now more than ever. Courts around the country are closed for extended periods. When the courts open again, they will be overwhelmed with delayed cases in addition to new cases. That means that, without any plan, if you are incapacitated by COVID-19, your children may be left in an unfamiliar environment, possibly waiting a long time for a court to appoint a guardian.
As parents, you know what is best for your children. Make your decisions now, so that no one else may make them for you.
Please understand the provided statutory documents might not fit for all family situations. One of the modifications I highly recommend is to designate alternative guardians in case the first choice is not available. Please consult a lawyer if you have any questions about your specific situation.
This blog post is written for educational and general information purposes only, and does not constitute specific legal advice. You understand that there is no attorney-client relationship between you and the blog publisher. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
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This post is also available in: Chinese (Simplified)