by Philip C. Sheward December, 2011
The question of whom should care for your children in the event of an untimely death or incapacity is a topic that is easy to avoid thinking about. However uncomfortable, wise parents will address the question of who will care for their kids if they are no longer able to do so. The Indiana legislature has recently created a process for designating a "standby guardian" to prevent any gap between the point of incapacity or death and the point at which a court actually appoints the guardian you have nominated for your children.
A standby guardian is an individual who will temporarily care for minor children if the parents pass away or become otherwise unable to care for their children. Parents are now able to designate a standby guardian simply by signing a properly drafted document in the presence of a notary public. The designation automatically becomes effective upon the parents' death or incapacity, and lasts for ninety days. However, if a standby guardian petitions a court for permanent guardianship of the children during the ninety day standby guardianship, it will remain in effect until the court makes a determination in the permanent guardianship case.
The benefit of designating a standby guardian is that it allows for a smooth transition from a legal standpoint as it relates to care of your children should you become unable to do so. There are no hearings or other steps that are required. The standby guardian declaration itself is a legally binding document that creates a temporary guardianship for the children. The existence of the declaration will allow the standby guardian adequate time to file a petition to establish a permanent guardianship within the ninety-day standby period.
Because this is a new planning tool under Indiana law, there are unanswered questions about the application of standby guardianships. For instance, how will a standby guardianship be treated in a situation where a divorced custodial parent, or a custodial parent of a child born out-of-wedlock, executes a standby guardian designation and names a standby guardian other than the non-custodial parent? Or, what recourse does a child's family have if there is a pervasive family opinion that a parent has nominated someone unfit as a standby guardian?
Despite these questions that remain to be answered, the standby guardian declaration can be a powerful tool to be used in conjunction with other effective estate-planning procedures. If you have any questions about standby guardian designations or other estate planning inquiries, our attorneys would be happy to assist you.