Your Trusted Pennsylvania Guardianship and Incapacity Attorney
A will and standby guardianship designation specifically names one or more potential guardians for your children should either situation above come to pass, as part of your estate plan. And it doesn’t stop there. You should also consider who you might choose as your own guardian if you were to become incapacitated due to illness or old age. Planning is essential for both ends of the spectrum.
Guardianship for Minor Children
If you are married to your child’s other biological parent, your spouse will automatically remain their guardian. However, you and your spouse need to decide together who you would choose to care for your children and act as their physical guardian in the event that both of you passed away or became incapacitated. Once you make this important choice, you’ll also need to choose a backup. It’s best to make a list of as many relatives or friends as you can, to put your mind at ease and ensure that someone you would choose could ultimately take responsibility.
If you have a minor child and you are not married to their other parent, you may not have a choice as to who becomes their guardian. In Pennsylvania, the other biological parent is usually awarded guardianship unless a judge decides they are unfit. But no one knows what the future might hold. In situations where a stepparent or other relative has played an active role, naming that person as your preferred guardian in your will can help a judge decide to place your child with that person on a permanent guardianship basis in the event of your untimely death.
In Pennsylvania as across the United States, many children are born to single parents, or will live in a single parent household at some point. Parents may marry new partners and create blended families in which the child has biological half-siblings or a stepparent who becomes an equal parent alongside the biological parents. However, not every arrangement is protected under Pennsylvania law. If you are remarried and your new spouse has taken on the role of a parent in your child’s life, while their other parent remains absent, it may be wise to consider a stepparent adoption or another formal legal arrangement to ensure that parent could be considered a legal parent by a court and make it easier for them to retain guardianship
Guardianship for Disabled Adults
If you have a child with special needs, you may be concerned about providing for their physical care even if you have provided for them financially through a special needs trust.1 Often, parents will retain guardianship of their adult children even after they reach the age of majority if the children cannot function at a relatively high level with respect to handling day to day tasks or living independently. Just as you would choose a guardian who could care for a minor child if you were to pass, it is a wise choice to nominate a relative or friend who could assume responsibility for your disabled adult child. This person might be the trustee of their special needs trust and handle both physical and financial responsibilities, or you might choose somebody different who can work with the trustee to ensure all of your child’s needs are met.
Guardianship for Incapacitated Adults
If you were to become incapacitated and unable to function as you normally would, a court might find it in your best interest to appoint a guardian. Pennsylvania courts try to listen to the wishes of the incapacitated person insofar as it is possible, and there is no better way to make your wishes known than to nominate someone to become your guardian in the event you ever become incapacitated. Typical choices include adult children, nieces, or nephews, since your spouse might have passed or be in an equally frail state if the need to appoint a guardian arises, but you can choose any friend, relative, or legal representative you like.
Discussing your options with a qualified Berks County estate planning attorney prior to making your decision is the best course of action. You can change your choice at any time up until the moment a guardian is needed, and as life goes on, keeping your attorney informed as to any changes you’d like to make will also provide them the opportunity to update any other aspects of your estate plan that may need it.