Feldman, Kramer & Monaco, P.C. | <strong >What Happens If You’re Unable To Care For Your Children?</strong ><br >  
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What Happens If You’re Unable To Care For Your Children?

May 2021 | Frank Buquicchio, Esq.
As the parent of a minor child, you are the legal guardian of that child (up to age 18 in New York State). As legal guardian, you have the sole authority to make all decisions regarding your minor child, including those concerning custody and health care.
What happens, though, if you become temporarily unable to care for your minor child? For example, you are in an accident and become incapacitated or debilitated to the point that you cannot care for your child. Who will then care for your child and make decisions for them?

There is a legal document you should have whereby you can designate a “standby guardian” for this and other temporary situations in which you become unable to care for your minor child.

A “Designation of Standby Guardian” is an essential planning tool for anyone with minor child(ren). This is a legal document wherein a parent, legal guardian, legal custodian, or primary caretaker can appoint a temporary guardian of their minor child or ward. The authority only lasts for up to 60 days after commencing.

At that point, if the parent, legal guardian, legal custodian, or primary caretaker is still unable to care for the child, a petition for guardianship would have to be filed with the appropriate court.

Without such a document, there is no one who has the legal authority to take care of your child (and someone would need to petition the court to become guardian). That can mean delays, court and legal fees, and no guarantee that a judge will appoint someone you would choose. There is even the possibility that a judge could appoint an independent third party such as someone you have never even met.

Under the statute (the New York State Surrogates Court Procedure Act §1726), the authority of the standby guardian takes effect if the parent either (i) becomes incapacitated; (ii) becomes debilitated and consents to the commencement of the standby guardian’s authority; (iii) becomes subject to an “administrative separation” and consents; or (iv) dies prior to the commencement of a judicial proceeding to appoint a guardian. Examples of administrative separation would be an arrest, detention, incarceration, or deportation of the parent or legal guardian.

In addition, it is recommended that an alternate standby guardian be named in the event the primary standby guardian becomes unable or is unwilling to act. The designation should be in writing and signed by the parent, legal guardian, legal custodian or primary caretaker (or in their presence and at their request if they are physically unable to sign) in the presence of two adult witnesses who must also sign. The standby guardian (and alternate standby guardian, if applicable) must also sign the designation.

Once the parent, legal guardian, legal custodian, or primary caretaker is again able to care for the child, the standby guardian’s authority would cease. If you are the parent, legal guardian, legal custodian, or primary caretaker of a minor, it is strongly recommended that you execute a Designation of Standby Guardian.

If you have any questions about the information discussed in this article, please contact your Legal Service Plan’s National Legal Office at 800-292-8063.