Everyone who has children has at one time or another given thought to the amazing circle of life. Our minds all wonder into those realms of imagining our babies growing up and receiving an education, landing that first job, walking down the isle at their wedding and someday caring for children of their own. But our minds are strange things and although we concentrate on the good we also ponder the bad. If something happens to me, what would happen to my children? Would they have enough money or more importantly, who would teach them all of life's lessons and who would keep them safe from harm?
As we think about these issues, the proactive among us calm their fears by executing Wills with special language in them creating Trusts and appointing Guardian, which would take effect upon the passing of both parents. This along with adequate life insurance helps us sleep better at night knowing that if the worst were to happen at least there would be a plan.
The Implementation of a Standard Estate Plan
But what if it wasn't the worst that happened? Would our estate planning documents be sufficient? Take for example a family of 3, Mom, Dad and their 10 year old daughter. While driving on a cool Sunday afternoon, their car is struck head on by another driver who has crossed the center line. (I'll skip ahead so that you don't worry about my fictional characters, they all make full recoveries). All 3 are rushed by ambulance to the hospital with serious, but not life threatening injuries. Neither Mom nor Dad are conscious and they are not able to participate in their own health care decisions. However, they both have Durable General Powers of Attorney and Health Care Powers of Attorney (sometimes called "Living Wills"). These documents allow Mom and Dad's lifelong friend Tim to make medical decisions for them. Tim is called by the doctors and Tim then makes the important decisions that will eventually help Mom and Dad make their full recoveries.
Need for Standby Guardians
But what about Daughter? Daughter is not old enough to legally make medical decisions for herself. The only people authorized to make Daughter's decisions, Mom and Dad, are in no condition to help her. What happens if Mom and Dad are not able to regain their faculties for an extended period of time, who then is legally authorized to care for Daughter? The answer is... no one. The only answer at this point is to have a judge adjudicate Mom and Dad as incapacitated and appoint a new Guardian for Daughter. This by the way, is a costly and time consuming process not to mention wrought with the possibilities of creating family turmoil.
Luckily, a few years ago the Legislature of the Commonwealth of Pennsylvania recognized this potential problem and acted to rectify it by passing the Standby Guardianship Act. This act allows parents to appoint temporary Guardians for their children. These Guardians can begin acting only after as specified triggering event. In our example the triggering event would be the "incapacity of both parents as designated by their attending physicians". The Standby Guardian would have all the powers to make medical, legal and financial decisions for the children for the first sixty (60) days without any need to petition the court.
The need for Standby Guardians seems obvious once you see it, however most people do not have this part of their estate plan completed. For parents whose children are still minors, this is an essential part of their plan.