Tags Posts tagged with "guardianship"


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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: I am starting to work on my estate plan and am having trouble deciding who I should name as guardian of my three children in the event I die when they are still minors.

THE QUESTION: Can you provide some guidance on what factors I should consider when making a decision about an appropriate appointment?

THE ANSWER: I can certainly provide guidance about choosing a guardian but I want to first commend you on planning ahead. So many people put off estate planning and the end results are often less than optimal.

After many years helping clients develop their estate plans, I have come to the conclusion that the decision as to who will serve as guardians of their children is the most difficult decisions my clients face. This is particularly true when the client does not have family in the area. That being said, there are certainly situations where friends may be more suitable guardians than family members.

When choosing a guardian, you want to name someone who is willing and able to raise your children in an environment similar to the one they are familiar with and one in which they can thrive. Whoever you chose as guardian should have values that are similar to yours and be willing to love and nurture your children.

Not only should you look at the relationship between the person you are considering as guardian and your children but also the relationship between that person’s children and your own. Are the children similar in age? Do the children get along? Do they have common interests? If the proposed guardian does not have children, is that because she doesn’t want children? These are the sorts of questions you should be asking yourself.

Since you will likely want your children to continue to have a relationship with your family regardless of who is appointed as guardian, the relationship between the guardian and family members may be a factor.

Where the proposed guardian lives and her living arrangements also come into play. Does the guardian live locally so that your children can stay in the same school district or will they have to relocate out of state? Does the guardian have room to take in three children or will the guardian need to build an addition or move in order to welcome your children into her home? If the guardian’s living arrangement is not suitable, does she have the funds to remedy the situation?

While money should not be the overriding factor in deciding on a guardian, if the person you want to name does not have the means to take in and care for your children, you can address this issue in your will. By setting aside assets in a testamentary trust which can be distributed to the guardian to cover certain costs, you can decrease the chance that the guardian will suffer economic hardship as a result of caring for your children. Funds that remain in the trust when your youngest child is no longer a minor can be distributed to your children.

While the discussion above is far from exhaustive, it sets forth many of the things you should think about when deciding on who to name as guardian of your children. However, do not assume that the decision is yours alone. Ask the person you would like to name as guardian if she is willing and able to accept the responsibility of raising your children. Upon your death, you don’t want the person you named as guardian to be surprised.

Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected].

By Linda Toga

THE FACTS: My elderly aunt never married and is living alone. During my recent visits with her, it has become evident that she cannot continue to live independently. She is not bathing regularly, there does not appear to be much food in the house, some of the food is past its prime and the mail is piling up. The last time I was there, my aunt told me that she “helped” out one of my cousins who had called saying he was in jail and needed money to make bail. Apparently my aunt was the target of a scam. Clearly she needs someone to handle her finances. Unfortunately, there are no family members in a position to take care of my aunt and she never signed a power of attorney or health care proxy.

THE QUESTIONS: Is commencing a guardianship proceeding a good idea? What happens if there are no family members or friends who can serve as guardian?

THE ANSWER: Although every situation is different, from what you have told me, commencing a guardianship proceeding is not only a good idea but the best way to proceed. Generally the appointment of a guardian is appropriate when it appears that a person is likely to suffer harm because she cannot provide for her personal and property needs and cannot understand and appreciate the nature of her functional limitations. Your aunt will likely suffer harm if she continues to ignore her personal needs. The fact that she was an easy target for a scam artist and that she is not dealing with her mail suggest strongly that she does not understand her own limitations.

HOW IT WORKS: Although not all people who need a guardian need assistance with personal care and property management, it appears that your aunt does need a guardian of her person and her property. A guardian of her person may have the authority to make decisions about your aunt’s living arrangements, medical treatment and procedures and day-to-day decisions about her care. A guardian of her property may make decisions about her assets, may handle her finances and may, with court approval, apply for government benefits or engage in estate planning on your aunt’s behalf.

A guardianship proceeding is commenced by filing a petition with the court seeking the appointment of the guardian. The petition is filed along with an Order to Show Cause (OSC) that essentially advises your aunt, as well as other interested parties, that a hearing will take place before a judge to determine if your aunt lacks the capacity such that the appointment of a guardian is appropriate.

In the petition you will need to provide evidence of your aunt’s limitations and examples of things she has done or things she fails to do that could result in harm. The court needs to know about your aunt’s living situation, her medical conditions and medications she may be taking, her assets and income, among other things.

If there is someone who is willing to serve as guardian, the court should be provided with that person’s contact information and an explanation as to why he/she may be the right person to care for your aunt. If the petition does not identify a potential guardian, and the court determines that a guardian is needed, one will be appointed from a list of trained individuals.

Once the proper paperwork has been filed with the court and served upon all interested parties, the court will set the date for the hearing and will appoint a court evaluator who acts as the eyes and ears of the court. The court may also appoint an attorney to represent your aunt in the proceeding.

The court evaluator will meet with your aunt to evaluate her ability to make decisions about her personal care and financial affairs. The evaluator may also speak to you and other family members, health care providers and others in an effort to learn more about your aunt’s situation. The evaluator will then prepare a report for the court that includes the evaluator’s recommendation with respect to the appointment of a guardian and his/her opinion as to whether your aunt should be present for the hearing to be conducted by the court.

After hearing testimony from you, the court evaluator, your aunt and other interested parties with personal knowledge of your aunt’s situation, the court will decide if the appointment of a guardian is appropriate. If your aunt is found to be incapacitated and a guardian is appointed, the court will explicitly state what types of decisions can be made by the guardian. The guardian will be required to complete a guardian training course and, depending on the value of your aunt’s assets, may be required to post a bond. In addition to visiting your aunt at least four times a year and making decisions on your aunt’s behalf, the guardian will be required to file annual reports detailing all financial activity and updating the court on your aunt’s condition.

Although the time between filing the petition and the hearing is supposed to be about one month, delays are common and, even after the hearing is completed, there is considerable time and effort required before the appointed guardian is actually in place and authorized to serve.

In addition to the time and effort associated with a guardianship proceeding, there are significant costs involved in having a guardian appointed, including payment to the court evaluator and any court-appointed attorney. In your aunt’s case, these costs may have been avoided if your aunt had engaged in estate planning and had a properly drafted power of attorney and health care proxy and/or trust in place. If you decide to pursue the appointment of a guardian for your aunt, be sure to retain an attorney with experience in the guardianship part so that the process will be handled properly and expeditiously.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate, estate administration, litigation, wills, trusts, small business services and real estate from her East Setauket office.

By Linda Toga

THE FACTS: I have three young children and want to be sure that they will be taken care of in the event my husband and I die before they are adults. I understand that I can appoint guardians for my children in my will but I am having a great deal of difficulty deciding who to name.

THE QUESTION: Do you have any suggestions as to the things I should consider when naming guardians for my minor children?

THE ANSWER: It is not surprising that you are having difficulty deciding who would best stand in your shoes in the event you and your spouse die before your children are adults. As an experienced estate planning attorney and the mother of two wonderful children, I know that the decision with which you are struggling is the most difficult estate planning decision faced by most parents. It is hard to think about not being there for your children and even harder to picture someone else taking your place.

However, if both you and your spouse die while your children are minors, the appointment in your will of a guardian for your children will likely prove to be the most important appointment you make. It is one that requires a great deal of thought and soul searching. Although people have different priorities when it comes to how their children will be raised, every parent wants their children to be loved, to be safe and to be able to reach their potential. Whether these goals will be achieved undoubtedly depends in large part upon the parenting skills of the children’s parents and guardians.

When considering who you would like to step into a parental role with your children, you should give thought to the following:

• Is the person married or single? If married, do you want to name both spouses as co-guardians? What happens in the event of death or divorce?

• Does the person have children? Do you approve of the person’s parenting skills as applied to his own children?

• Is the person’s house/apartment large enough to accommodate your children? If not, is the person willing to relocate?

• Is the person’s lifestyle “child friendly,” i.e., does he travel extensively or for long periods of time or work irregular hours, and if so, who will be there in his absence to care for your children?

• How old is the person and how is the person’s health?

• Is the person financially stable and can the person afford to include your children in his life?

• Does the person share your values, i.e., does the person place the same importance on education, religion, community etc. that you do?

• Does the person get along well with your children and your extended family?

• Would placement with the person require your children to move from your current community and possibly away from other family members?

While this list is not exhaustive, it gives you a good starting point for considering who to name as guardian of your children. Many people choose family members as guardians. However, the fact that someone is related by blood does not necessarily mean that that person will be able to raise your children as you would. Your parents may be very loving but are they physically able to take on the challenge of young children?

Your siblings may share some of your values; but, perhaps they are less focused on education than you are, or are reckless with money. Your experiences growing up and your family dynamics will certainly influence your thinking when it comes to naming a guardian. It is absolutely critical to talk to the person you plan on naming as guardian so that you can discuss your concerns and your wishes and confirm that the person is willing to take on the huge responsibility that comes with being a guardian.

Ask the person how he would handle certain situations that may arise, how he feels about issues that are important to you and about how having to care for your children will impact his life. Make sure the potential guardian understands what is involved in being named guardian of your children and urge him to be honest and candid when responding to your questions.

If you decide that you have the perfect person to serve as guardian but are concerned about the adverse financial consequences of that person raising three more children, you can make arrangements in your will to provide the guardian with financial support. Similarly, if a potential guardian meets your criteria but lives in a small apartment, in your will you can include provisions that would allow the guardian to move into your home to care for your children or you can provide other appropriate housing. In your will you can also state your wishes with respect to how your children will be raised.

You can instruct your guardian to seek input from your family before making important decisions about your children’s futures and you can set forth the values that you would most like to see instilled in them. As if choosing a guardian is not difficult enough, in your will you should name both a guardian and a successor guardian. If something should happen to the named guardian, it is better if you, as opposed to the courts, name the person that will continue caring for your children. This is one of the things that is simply too important to leave to chance.

Linda M. Toga, Esq. provides legal services in the areas of estate planning, probate and estate administration, real estate, small business service and litigation from her East Setauket office.