Providing a Guardian for Your Children

All parents need to make preparations to ensure that their child will be well cared for if they are ever unable to do so. Planning ahead allows you to name a trusted guardian who respects your values and ideas about what you want for your child. If you do not make future care plans for your child, the state through the court system can appoint a guardian without your input.

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Providing a Guardian for Your Children: Detailed Information

This information is meant to be a general introduction to this topic. The purpose is to provide a starting point for you to become more informed about important matters that may be affecting your life as a survivor and to provide ideas about steps you can take to learn more. This information is not intended nor should it be interpreted as providing professional medical, legal and financial advice. You should consult a trained professional for more information. Please read the Suggestions and Additional Resources documents for questions to ask and for more resources.

No parent wants to face the possibility that there may be a time when they are unable to care for or make decisions for their child. Yet all parents need to consider this possibility and make preparations to ensure that their child will be well cared for if they are ever unable to do so. This step becomes even more important for survivors because cancer or treatment may require hospital stays, out-of-town medical visits or other time away from your child.

Planning ahead allows you to name a trusted guardian who respects your values and ideas about what you want for your child. This document is a starting point for making plans to provide a guardian for your child if necessary. If you have not made plans for the future care and custody of your child, then in an emergency, the state through the court system could make decisions for your child without your input. Consider doing further research and also discussing this important matter with a legal professional and trusted family or friends.

This document provides an overview of the process of providing a guardian for your children, including:

• Definition of "legal guardian"
• Categories of guardianship
• Standby guardianship
• Considerations when choosing a guardian
• The process of naming a legal guardian
• Information to provide a selected guardian
• Matters to discuss with a potential guardian
• Providing information related to the medical needs of your child
• Helping your child with fears and worries

What is a legal guardian?

A legal guardian is a person who has been given the authority to care for the personal and/or property interests of another person. In the case of children, if the parent(s) are unable to take care of their minor child (usually defined as under age 18), the legal guardian becomes responsible for the child's physical care, education, health and welfare, as well as for making decisions about faith-related matters. In some states, this non-parent guardian is called a conservator.

Categories of Guardianship

There are different types of guardianship that need to be considered in this process. You need to consider which type of guardianship you want to recommend:

• A "full guardian" is responsible for both the personal well-being and the financial interests of the child.

• A "limited guardian" has specific powers over the interests of the child. For example, if parents are concerned about one person's ability to provide fully for their child's needs, they might name two individuals to serve different roles as guardians:

What follows is an overview of guardianship options with an emphasis on standby guardianship.

What is a standby guardianship?

Standby guardianships create an option for a child's care during a disabled parent's lifetime, as well as after the parent is no longer available to care for the child. This type of guardianship is one of a number of legal arrangements parents can choose from to make stable arrangements for their children.

Standby guardianships vary from state to state and some states might use a different term, such as "preneed designation." The purpose of the standby guardian law is to permit a parent to choose a competent, trusted person who will be ready and prepared to step in to help care for the child if the parent becomes seriously disabled, and take over childrearing responsibilities if the parent dies.

What should be considered when choosing a guardian for your child?

During the process of identifying a prospective guardian, you need to take time to talk with the person(s) you are considering. It is also a good idea to designate an alternate guardian in case your first choice is unable to assume this responsibility at the time of need.

Consider the following when choosing a guardian:

1. Does the individual you are considering want the long-term responsibility of being a guardian? If the person is not willing to take care of your child, or is not interested, you need to choose someone else.
2. Do you want your children to remain together? If this is important to you, be certain that you name the same guardian for all of your children.
3. Will the potential guardian be able and well-equipped to provide your child with a stable and nurturing home life? Ask yourself if that person will be able to provide the positive environment and home life that you want for your child.

Naming one guardian is usually a better idea than naming co-guardians. Co-guardians can disagree on childrearing issues or decide to go their separate ways. For example, naming a husband and wife as co-guardians could get complicated if there is later a divorce that results in a custody battle.

If you do name a couple as co-guardians, be sure to state what you would want to happen if they later decide to separate. You need to be very certain that the two people are able to get along and work together on behalf of your child.

Keep in mind that guardianship arrangements must always be set up according to the laws of the state in which you and your child live. If you have residences in more than one state, or if the guardian you name lives in another state, you need to make sure that you follow the laws of those states as well.

The most common forms of guardianship and custody include:

What is the process for naming a legal guardian for a child?

If your child has another parent, you both need to agree on a guardian. That way, if a court ever needs to appoint a guardian, the judge will likely appoint the person you both named. This is, of course, unless the judge determines that the guardian you named is not now appropriate and that the appointment of that person would not be in the best interest of your child.

There are a number of ways to name a guardian for your child, depending on the laws in your state:

1.  A standby guardian is established through court contact. While states vary about the requirements in each step, the following is a general overview of the process of appointing a standby guardian:

Some states use a "petition" to establish guardianship:

• States that use this process ask you to file a petition with the appropriate court (Family or Probate) along with supporting documentation. Through the petition and documentation you have the opportunity to describe why you chose a particular person to be your child's guardian.
• In most states, the petition will require the signature of the parents or legal guardians as well as the signature of the person who is being appointed standby guardian for the child.
• When you file a petition, the court examines your choice of guardian and determines whether he or she is "fit" to care for your child.
• Once the standby guardian is approved by the court, the guardian's authority to act in a parental role begins with the "triggering event" you named (usually severe illness or death).
• Depending upon the state law, the guardian will have 60 or 90 days to return to court and show that: 1) the triggering event has occurred, and 2) the guardian intends to care for the child permanently.

Some states use a "designation" to establish guardianship:

• This process to establish guardianship involves filling out a form or written designation with: 1) the guardian's information, and 2) a description of the triggering event that will give the guardian the authority to act in a parental role.
• After the triggering event (usually severe illness or death), the standby guardian must bring the court evidence that the event has occurred.
• The court then examines whether or not your choice of guardian is "fit" to care for your child.
• If the court approves of the guardian, he or she will be officially "confirmed" in that role. There are additional legal procedures to establish permanent guardianship.

2. A preneed designated guardian is named in a power of attorney document and in a separate "preneed guardian designation" form.

Appoint a standby guardian or a preneed guardian in advance so that you can fully participate in the decision-making process. This also gives you the opportunity to name a different guardian if your first choice is unacceptable to the court for any reason.

3. Another way to protect your child is to petition the court to "appoint a guardian now." This method allows you to personally present your version of why your candidate should be appointed to the judge.

Carefully consider these important points before deciding to appoint a guardian now:

• You would have to give up your legal rights concerning your child.

• While the child could live with you, no decisions could be made regarding the child without the agreement of the appointed guardian.

• Although it is possible to ask the court to revoke the guardianship appointment, this may not be an easy process.

4.   If you have not named a guardian for your child and are unable to express your wishes, the courts will choose the guardian for your child. The legal system usually gives family members preference based on the family member's relationship to the child. Under the court system, if available, the child's other parent is usually the first choice to care for the child.

If you are separated or divorced, you may not want your child's other parent to have custody. If this is because you believe that the other parent is incapable or will not care for your child properly, contact an attorney or legal aid service. Custody may be granted to someone other than the surviving parent if the courts determine that the parent has legally abandoned the child by not providing for or visiting for an extended period of time, or if the parent is found to be unfit.

If the other parent is not available, then the court will look to the child's grandparents, aunts or uncles, adult siblings or other relatives. If you believe that any of these relatives would not provide appropriate care and supervision for your child, make written, legal arrangements for someone else to care for your child. Consult with an attorney if you are concerned that a relative might legally challenge your decision about guardianship.

What information should be prepared for a child's guardian?

Document specific information for each of your children that would be important to a guardian. This information can be kept in a notebook or separate files and may also come in handy for babysitters and other temporary caregivers who might step in occasionally to help you.

For each child you may choose to include:

Some of the planning and preparation you do through this process may also be useful in other circumstances. For example, if you must leave your child with a caregiver during a business trip or a family emergency, you will already have important information organized and ready to share with the person who takes care of your child.

What does a survivor need to discuss with a potential guardian?

Start your discussion with a potential guardian or caregiver by reviewing the file or notebook you have created with the health history, insurance information, school history and personal information about each of your children.

1.  Make a list of your values and the things that are important to you. Describe what you want for your child in each area of the child's life, such as your views on education, moral upbringing, faith-based beliefs, nutrition and exercise, and continue to expand on the information as needed. Providing this type of information in writing will be very helpful if a guardian is needed.

2.  Learn about the values and things that are important to the person you are considering as a guardian.

• Ask the prospective guardian to discuss his or her point of view on what is important to you.

• Discuss any differences, such as raising your child according to specific faith-based practices.

• If the person you are considering as guardian has his or her own children, discuss the possible challenges of also raising your child.

• Find out whether both you and the guardian agree that the guardianship situation would work for everyone involved.

3.  Give the prospective guardian, and the alternate guardian you have selected, a copy of the important information you have written down.

Attach a copy of this information to your will so that if there is ever a dispute, the court will have the document as a reference. This information should also be shared with trusted family members or friends who would continue to see your child if a guardian takes over their care.

What can be done to assist a guardian or caregiver to address your child's medical needs when you are unavailable?

Someone with the legal right to make health care decisions for your child ideally should be available 24 hours a day. If the situation is a medical emergency, a health care provider has the right to decide on treatment for your child if no one else is available.

Many health situations that occur with children are not considered to be true emergencies, such as ear infections, rashes and viral infections. In these instances, without proper authorization from a parent, a temporary guardian or caregiver could find it difficult to get medical treatment for your child. Take the following steps to avoid delays in getting your child needed health care:

1. Decide who should make health decisions for your child in case something happens when you are not available to make such decisions yourself.

2. Discuss your child's health care information with the named guardian or a caregiver who has agreed to make health decisions in your absence. Share this information with an alternate person who can act as a back-up if the first person is unavailable.

3. Speak with your child's health care provider as well as the admissions office at your local emergency room. Ask what is needed from you to allow another person to make a health care decision for your child.

• Will a phone call from you be acceptable, or do you need to provide a written letter or notarized statement?
• If a letter or statement is needed, what should be included? 

4.  Find out from your attorney whether there are specific legal documents that are used in your state to give someone else authority to make medical decisions for your child. For example, state law may require you to execute a type of power of attorney for this purpose.

5.  Give the named guardian or caregiver the information about your child's primary health care providers, including the local emergency care facility. Include specific names, addresses, phone numbers and hours of business.

If you leave your child with one person, but ask another to make health care decisions, also provide the contact information of the person authorized to make a health decision. Keep in mind that the caretaker needs to know how to contact the person responsible for health care decisions.

Is there a way to help a child with fears and worries?

Your child may need help with fears and worries about what would happen if you could no longer provide the needed care. Losing a parent is a natural fear that all children have, even if their parents have never been ill. Children need reassurance that they will always be cared for and loved. Older children may even benefit from being involved in the process of identifying a guardian. If you decide to involve your older child in the process of selecting a potential guardian, a school counselor, pediatrician, family counselor or hospital social worker can provide guidance on the best way to do this.

The process of naming a guardian for your child can be challenging. Talking with other people who are (or have been) in a similar situation may be helpful. A cancer organization or a group of single parents can be excellent resources and serve as a support system. You can also gain information and support by talking with trusted individuals, such as an attorney who specializes in family law, a hospital social worker, a clergy person, or family and friends.

This document was produced in collaboration with:

David S. Landay, Esq., author of Be Prepared: The Complete Financial, Legal and Practical Guide for Living with Cancer, HIV and Other Life-Challenging Conditions.

Works Cited:

American Bar Association. Standby Guardian Laws: A Guide for Legislators, Lawyers and Child Welfare Professionals. 2000.

Brooklyn Legal Services Corp. and Gay Men's Health Crisis. Facing The Future, A Legal Handbook for Parents With HIV Disease, Third Edition. New York, 2003.

Greenwald, Robert. A Clinical Guide to Supportive & Palliative Care for People with HIV/AIDS. " Ch. 18: Legal and Financial Issues." Department of Health and Human Services, 2003.

Landay, David S. Be Prepared: The Complete Financial, Legal and Practical Guide to Living with Cancer, HIV and Other Life-Challenging Conditions. New York: St. Martin's Press, 1998.

The Association of the Bar of the City of New York. Certified Training for Guardians & Court Evaluators Under Article 81 of the Mental Hygiene Law. New York, 2001.

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Providing a Guardian for Your Children: Suggestions

The suggestions that follow are based on the information presented in the Detailed Information document. They are meant to help you take what you learn and apply the information to your own needs. This information is not intended nor should it be interpreted as providing professional medical, legal and financial advice. You should consult a trained professional for more information. Please read the Additional Resources document for links to more resources.

Learn about your state laws and what legal steps you need to take now to ensure that your children are taken care of according to your wishes.

Ask yourself the following questions during the process of choosing a guardian for your child:

• Is the potential guardian an adult (at least 18 years of age in most states)?

• Is this person genuinely concerned about the well-being of your child?

• Will this person be financially able to raise the child? If not, can you provide enough financial resources, such as through life insurance, for the guardian to properly care for the child?

• Does this person respect your thoughts and values, including faith-based beliefs, enough to follow your wishes?

• Does this person want to take on the responsibility of raising your child?

• Can this person provide the type of environment and home life that you want for your child?

• Does this person have the energy and time to raise your child?

• Does this person have a positive support system, such as friends or family, who can help out?

• Does this person have a history of legal problems or poor decision making? The court is less likely to appoint a person who has a history of legal or personal problems.

• Will this person help your child to keep their relationships with other family members and friends?

• Would your child have to relocate to live with this potential guardian?

• What does your child think of this person, both in general and as a possible guardian?

Help your children with fears and worries about what would happen if you could no longer care for their needs. Losing a parent is a natural fear that all children have, even if their parents have never been ill. Children need reassurance that they will always be loved and taken care of. If you decide to involve older children in the process of identifying a potential guardian, a school counselor, pediatrician, family counselor or hospital social worker should be able to provide you with guidance regarding the best way to do this.

Talk with people you trust, such as an attorney with a specialty in family law, a hospital social worker, a clergy person, or family and friends. They can provide you with information and support as you make your important guardianship decision.

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Providing a Guardian for Your Children: Additional Resources

The resources listed below provide more detailed information and support services to help you with providing a guardian for your children.  Please read the Detailed Information and Suggestions document for more information and questions to ask.

Click a resource for more information:

• 2-1-1 (telephone information service)
• LIVESTRONG SurvivorCare Program
• American College of Emergency Physicians
• American Bar Association

2-1-1 (telephone information service)
www.211.org

In many states, you can dial 2-1-1 to get information about local support services, including food banks, financial assistance programs, job training programs, health insurance and childcare. You can also go to the 2-1-1 Web site and enter your ZIP code to link to your local 2-1-1 service.  Your local 2-1-1 service Web site should provide a listing of community programs and services available in your area.

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LIVESTRONG SurvivorCare Program
www.livestrong.org/survivorcare

LIVESTRONG SurvivorCare offers assistance to all cancer survivors, including the person diagnosed, caregivers, family and friends. The program provides education, information about treatment options and new treatments in development, counseling services and assistance with financial, employment or insurance issues. To provide these services, LIVESTRONG SurvivorCare has partnered with several organizations, including CancerCare, Patient Advocate Foundation and EmergingMed.

The LIVESTRONG Survivorship Notebook is a tool that can help you organize and guide your cancer experience. The portable, three-ring binder contains a variety of information covering a full range of physical, emotional and practical survivorship topics. You may order a free LIVESTRONG Survivorship Notebook at www.livestrong.org/notebook. Shipping and handling charges will apply.

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American College of Emergency Physicians
www.acep.org

The American College of Emergency Physicians is a professional organization for doctors and an advocate for emergency physicians, their patients and the public.  This Web site offers information for consumers as well as physicians. You can print out a medical history form and "Consent to Treat" form for each of your children. These forms will make it easier for a caregiver to get medical treatment for your child if you are unavailable. The "Consent to Treat" form is available in Spanish as well. The site also includes first aid tips, general health information and a link to a prescription assistance program.

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American Bar Association
www.abanet.org

The American Bar Association is a professional association for lawyers. The ABA Web site has information for the general public about a wide range of legal topics, including creating a will, tax planning, establishing trusts and other common legal issues. In addition to explanations of legal terms and processes, the site provides specific information about preparing legal documents such as wills and other advance directives. The site also includes information about finding a lawyer or legal aid service in your state, as well as what to do if you have a problem with a lawyer or want to manage a legal issue without a lawyer.

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