Most parents take certain steps to ensure their children will be cared for in the unfortunate event of an early death. Parents often have life insurance to replace their income, and a will or trust to ensure that their possessions are passed on to their children.
However, what most parents forget about having is a standby guardianship.
In 2011 the Indiana legislature created a new standby guardianship (Ind. Cod Sec. 29-3-3-7) which allows the parent(s) of a minor child to designate a standby guardian. An alternate standby guardian can also be named. The practical use of this law ensures a child or protected person has a legal guardian in place until a petition for guardianship of the minor or protected person can be heard by a Court following the parent’s death.
The law makes a standby guardianship declaration only valid for 90 days. If the standby guardian files a petition for guardianship of the minor or protected person during the ninety (90) days, the authority of the standby guardian remains in effect until the Court can hear the petition.
The benefit of designating a standby guardian is that it allows for a smooth transition for care of your minor children. There are no hearings or other steps required until a standby guardian can make it permanent by filing a guardianship petition. Since this is a relatively new mechanism for estate planning, there are some unanswered questions about the application of these documents in cases of blended families or divorced parents. For example, it is possible a parent may have a document prepared to give guardianship to a family member other than the other surviving parent. Another problem could arise if a parent were to nominated someone who years later becomes unfit or develops issues that could put a child in danger, such as addiction or someone who becomes incarcerated.
Although the judge has discretion to determine if someone will remain as the guardian based on the best interest of the child, a standby guardian can help you ensure that your first pick has a head start. We all have that family member that we love but wouldn't want raising our children. If you would like to find out how you may be able to take advantage of Indiana’s Standby guardianship statute, you should talk to a licensed attorney who can advise you on the proper application of the law in your case.