Minor Guardianships Under New York State Law

If you are a parent of a minor child, one of the most important parts of your estate plan will be the nomination of a guardian.  If you were to pass away without having named a guardian, or there is a disagreement over the nominated guardian, those interested in the care of your children will have to resolve the matter in court. You may nominate a guardian for your minor children to act in the event of your death in your Last Will and Testament as well as a Standby Guardian who may act during your lifetime in the event you become incapacitated or debilitated.

Standby Guardian

A Standby Guardian may be designated to act in the event you become unable to care for your children in the future because either you have a mental impairment that will result in your inability to care for your children, or you anticipate being unable to care for your children due to a fatal illness or a physically debilitating condition.  A Standby Guardian may be designated pursuant to New York State Surrogate’s Court Procedure Act § 1726.  To nominate a Standby Guardian, a parent will sign a Designation of Standby Guardian form in the presence of two witnesses who are eighteen (18) years of age and who are not named in the document.  The same form can be used for more than one child.  The form also allows for the designation of a Standby Guardian and an alternate Standby Guardian.   The Standby Guardian will have 60 days to Petition the Family Court for custody of the child if the triggering event (incapacity or debilitating illness) occurs.

Guardian Nominated under a Last Will and Testament

When making your Last Will and Testament, you should include a nomination of a guardian of the person and the property of your minor children in the event both you and your co-parent pass away before all your children reach age eighteen (18).

If your co-parent survives you, he or she will be the natural guardian of the child and no court involvement will be necessary.  However, if both of you are deceased, the court will need to appoint a guardian of the person.  This is the person who will make decisions regarding the personal needs of your child, including where they live as well as healthcare and education decisions.

A guardian of the property of a minor child is empowered to make financial decisions on their behalf, including maintaining their assets until they reach the age of majority.  The guardian of the person and of the property may be the same person, but they may also be different people.  In fact, even if your child has a surviving parent, New York requires that any minor who inherits more than $10,000 must have a guardian of the property as well.

Choosing a Guardian

When choosing a guardian, you should consider people in your life who have a strong relationship with your child and whose decision-making and values you both respect and agree with.

If you have questions about nominating a guardian for your minor child, contact the Law Offices of Roman Aminov, P.C. at 347-766-2685 to discuss the matter.  We are here to guide you through this important and sometimes emotional process.

This article is for educational purposes only - to provide you with general information, not to provide specific legal advice.  Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed attorney in your state.


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