It’s a hard but necessary question for every parent. Who will take care of the children if both parents pass away? This is often an uneasy topic for our Trust and Wills clients who have little children. Although a hard topic, the unimaginable can happen and as estate planners, we want our clients to be as prepared as possible for the unpredictable.
What is a standby custodian?
A standby custodian is a designated adult who has the legal ability to become a temporary custodian if a parent should ever become unavailable to care for the child. Although the standby custodian is almost always a family member, it does not have to be. The adult can be a friend, church member, etc. Both parents who have legal rights to the child would have to agree to the standby custodian. Minus certain circumstances, if there is a surviving parent, that parent would receive custodianship of the child.
Things to consider before appointing a standby custodian.
Uncle Jack might be fun, outgoing, silly, and “cool” in the children’s eyes, but he does not have a reliable car and stable income. Auntie Sara has a nice house, a big yard, and is loving and sweet, but she lives four hours away. Cousin Bob has children of the same age, but his house is dysfunctional and lacks a positive environment. Grandma Audrie wants to be the designated custodian, but she is 70 years old and lacks the energy to keep up with the children. Picking a standby custodian requires a parent to evaluate the potential custodian’s living condition, distance, religion, lifestyle, experience, income, temperament, work-life balance, social activities, maturity, and more. We highly advise our clients to take their time in picking their standby custodian, even if they think they already know who they want to designate.
When does the standby custodian gain custodianship?
The parents list triggering events and upon any of the triggering events occurring, the standby custodianship would take effect. Triggering events can be mental incapacitation, physical incapacitation, incarceration, comatose, or death. The standby custodian would have the authority to act as the parent and make most legal decisions, seek and receive medical care for the child, make education decisions, have the child live with the custodian, etc.
How long does the custodianship last?
When the triggering event happens, the standby custodian must file a petition with the court within 60 days to continue the custodianship. By statute, if the designated standby custodian has received parental approval from both parents, the court can grant permanent custodianship without holding a hearing. If there is a surviving parent with legal rights to the child who contests the standby custodianship, the court is required to hold a hearing. During the hearing, the court will apply several factors to determine the best interests of the child. Some of those factors are: physical and emotional well-being, medical or mental health, educational needs, reasonable preference of the child, whether the contesting parent has any chemical dependency, and more.
What if both parents die and there is no designated custodian?
Upon the death of incapacitation of both parents, the child’s custodianship will go before the court. The court will decide who to appoint, and it may not be the person the parents want. This is exactly what you want to avoid and the reason why a standby custodian is so crucial. There have been cases where custodianship has been a hot and contested issue that was drugged out for long periods in court.
I’m convinced. I need a Standby Custodian. What is my next step?
Contact us. Attorney Derek Thooft is a trusted, experienced, and dedicated estate planner. At Thooft Law, our team has helped clients of all ages make important life decisions including the designation of a standby custodian. Our extensive knowledge in trusts, wills, estate planning, and probate has made Thooft Law the go-to law firm for many clients in Minnesota and North Dakota. We know the law and we apply it well. Call us at 651-364-7725 or email [email protected]. Check us out on Facebook, Thooft Law, LLC.
**As always, all initial consultations are FREE.**