Planning Options for the Daily Care of a Minor in the Event of an Adult's Incapacity or Death

While most children grow up in their families of origin with at least one of their parents, what happens when the parents die or are incapacitated? While they are alive, parents are presumed to be the legal guardians for their children, and if one dies or has had his/her parental rights terminated, then the surviving parent is generally the sole legal guardian. Even if that parent remarries, the stepparent is not the legal parent.

As this chapter shows, parents can give to other adults some of their legal caretaking responsibilities while they are still competent. There are three different methods by which parents can provide for the various types of personal guardianship of their children: by will, by petition, or through another statutorily-created mechanism, such as standby guardianships. A guardianship by will only comes into effect when both parents are deceased, and it is the nomination made in the will of the last surviving parent which the court will look to in appointing the guardian. The other two means of creating long-term guardianships can occur while one (or both) parents are living.

In addition to these primary methods of guardianship, statutes may provide for more limited delegations of authority, such as the right of a non-parent to consent to medical care. A guardian's authority is defined by the statutory grant, so a guardian appointed pursuant to a medical guardianship statute does not have authority with respect to educational decisions.