CSG Law Alert: Incorporating Guardianships in Estate Planning

When it comes to estate planning, guardianship is a frequently overlooked issue as individuals are often so focused on the distribution of their financial assets that they forget about this important issue. There are two types of guardianships that can be incorporated into an estate plan: (1) guardianship of a minor child and (2) guardianship of an alleged incapacitated person, often called a conservatorship. Designations of both types of guardians can be incorporated into your estate plan.

Guardianship of a Minor

By default, parents are responsible for their minor children’s custody and control and can make important decisions for their minor children regarding medical care and education. Legally, upon obtaining the age of majority, an individual is considered an adult and is responsible for his or her own wellbeing, both personally and financially.

In the event that one parent dies leaving a minor child, the child’s surviving parent would serve as sole natural guardian. However, if a minor child’s parents both die, a guardian for such child would need to be appointed. These guardianship designations can be made pursuant to your Will. This will ensure that there are no disagreements following an individual’s passing as to his or her wishes regarding guardianship of his or her minor child or children.

One thing to consider when designating guardians is whether to designate married couples as co-guardians. If the designated co-guardians are a family member and his or her spouse, do you want the spouse to still serve as a co-guardian with your family member in the event they are divorced or separated? Limitations can be placed in your Will to ensure that a family member’s spouse will only serve as co-guardian provided they are married to and living with your family member.

Designating an individual who resides overseas also presents complications. As an example, New York law prohibits appointing a U.S. non-resident, non-citizen as sole guardian and will require a local co-guardian who can assist in moving a minor child abroad.1 In New Jersey, however, a foreign guardian can serve alone, but courts will look to the best interest of the child and may appoint a local co-guardian. If you want a child to live overseas long-term, the child will need to apply for a visa to the country of destination. Obtaining a visa can be time-consuming and may delay the child’s departure from the United States.

How should you choose a guardian? First, it is critical to establish criteria for your ideal guardian, and then choose potential candidates who meet these criteria. Consider each candidate’s relationship to your child as well as his or her willingness to take on the role of guardian. Talk to the candidates and advise them that they are being designated in your Will. This will ensure a smooth transition in the event of your death.

In New York, a designated guardian under the terms of a Will cannot act solely by virtue of an appointment in a Will. Instead, he or she must wait until the Will has been duly admitted to probate and letters of guardianship have been issued to said guardian.2 When a Will is admitted to probate, the designated guardian must qualify within three months by filing a petition in Surrogate’s Court; otherwise the guardian is deemed to have renounced his or her appointment.3 Upon good cause, the court may extend the time period for qualification past three months if the Court deems the extension reasonable.4 Absent an appointment in a Will, the court will appoint a guardian.

In New Jersey, a designated guardian must also petition the Surrogate’s Court before becoming a legal guardian.5 While a judge has the authority to name a different guardian than the person designated in a Will, the Court will often follow the designations in the Will. The Court will give substantial weight to the designations made in a Will; however, the Court will ultimately determine what is in the best interest of the minor child.

Absent a designation in a Will, if there are individuals who are equally entitled to serve as guardian, the Surrogate’s Court will give preference to a resident of the state of New Jersey unless the best interests of the minor will not thereby be served.6 Additionally, many New Jersey Surrogate’s Courts will not appoint a non-citizen residing outside of the United States as a guardian. Instead, the Surrogate’s Court will direct the Executor to apply to the Superior Court to have the non-citizen appointed as the legal guardian. That being said, petitioning the Superior Court can be costly and time consuming, so one should carefully consider whether to appoint a non-citizen residing outside of the United States as guardian.

Due to these various considerations, it is imperative to give much thought to the guardian designation for one’s minor child.

Guardianship of an Alleged Incapacitated Person

In the event of incapacity during lifetime, a guardian of the person and/or property may need to be designated for various reasons. Many states allow an individual to plan for the event of incapacity by designating his or her own guardian in a Power of Attorney. For example, you can include language in a Power of Attorney designating the agent under your Power of Attorney to serve as your guardian as well. The designated guardian will still need to file a formal application to serve, but this will inform the court of your wishes in the event of incapacity. Once incompetency is established, the court will then review your designated guardian’s qualifications and appoint him or her as guardian.

1 New York Court Acts, N.Y. Surrogate’s Court Procedure Act (“NY SCPA”) § 707

2 NY SCPA § 1710

3 NY SCPA § 1711

4 Id.

5 N.J. Ct. R.4:81

6 N.J. Ct. R.4:81

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