Does a Surviving Parent Supersede a Guardian Designation?

In your Last Will and Testament, not only should you disclose how your property and assets should be distributed amongst your children and other beneficiaries, but you must also name which adult individual should retain guardianship over your children if they are still of minor age. However, you may wonder if this second part is technically necessary if your children will be left with a surviving parent upon your unfortunate passing. Well, for this, please continue reading to learn whether a surviving parent overrides your guardian designation and how an experienced Putnam County guardianship attorney at the Law Office of Andres D. Gil, PLLC, can help you better understand the plan you are making for your minor child.

Can a surviving parent override my guardian designation?

You may be in a scenario where you are divorced from your children’s other parent, and they are either the noncustodial parent or otherwise estranged from your family. Understandably, this is why you may want to override a surviving parent with another guardian in your Last Will and Testament document. But you must understand that a parent’s rights are constitutional and permanent, while guardianship is a temporary status that does not end the parent-child relationship by itself.

This is to say that a surviving parent is considered your minor children’s natural guardian and thereby has a right to custody that takes precedence over the designation you made in your will document. And so, your guardianship appointment may only take effect when both of your minor children’s parents are either deceased or deemed mentally incapacitated.

When is court intervention necessary for guardianship?

To reiterate, a surviving parent possesses automatic guardianship rights, but this is unless a court formally terminates them. That is, a court may intervene if your loved ones, over even a child-protective agency, step forward and complain about a surviving parent’s fitness to care for your minor children. If your minor children are set to receive an inheritance through your Last Will and Testament, then this petition is typically filed with and handled by the New York State Surrogate’s Court.

And so, the court may review the specific case at hand to determine whether the surviving parent is unfit and therefore disqualified to retain these rights. Examples of such parental unfitness may be if they have a serious illness that limits them from physically caring for your children, a mental incapacity that deters them from being emotionally available for your children, and an unstable financial situation that means they cannot afford to support your children through life, etc.

What is the difference between a guardian and a standby guardian?

It is worth mentioning a scenario in which the surviving parent does espouse fitness but is in a situation where they cannot currently care for your minor children, such as being on military deployment. In this case, you may consider naming a standby guardian, which may be a separate task from your will but can work alongside it. A standby guardian is an adult with concurrent authority who can assume care of your children in times like these. The surviving parent may revoke the appointment once they become available to your children.

If you are still hesitant about taking the monumental step of starting your estate plan, consult with a skilled estate planning attorney in Putnam County, from the Law Office of Andres D. Gil, PLLC, to get the assurance and confidence you need to proceed. From here on out, we will be with you every step of the way.