Essential Series: Incapacity Planning for Parents of Minor Children

Estate planning is not just about what happens to your things after you die. It also includes planning for when a person is incapacitated. One often overlooked aspect of incapacity planning is what to do with children if the parents become incapacitated. While grandma may be able to babysit the kids for a short term without involving a lawyer, if it is a long term situation and issues arise involving the hospitals, schools, or legal system, something more official needs to be in place. In these situations, the Designation of Standby or Temporary Custodian under Minn. Stat. Ch 257B (or "Guardianship Directive") needs to be in place.

When is a Guardianship Directive Needed?

A Guardianship Directive authorizes someone to step in the shoes of a parent and assume parental authority. It is needed when both (1) one parent is dead, unavailable (e.g., in prison), incapacitated, has their parental rights terminated, or is incapable of doing child-care duties, and (2) the other parent is incapacitated, unavailable, or incapable of doing child-care duties.

Why is a Guardianship Directive Necessary?

Many people might think that grandma can step in and watch the kids if something happens to mom and dad. And certainly, grandma might be a good person to designate as a temporary guardian. But it needs to be official. If the children need to go to the hospital, the children get in trouble with the law or are otherwise involved with the legal system, or something needs to be done with the schools, if proper authority is not designated, then social services may need to be involved.

Is the Guardianship Directive the Only Document Delegating Parental Authority?

There are two types of documents that delegate parental authority. The first is a designation of temporary guardian. This authorizes a guardian for a time certain - such as if a single parent needs to travel overseas from January 1 to January 15. The second is the Guardianship Directive. This document has “springing” authority, meaning it doesn’t start on a date certain, it starts when the conditions discussed earlier (e.g., one parent is dead and the other incapacitated) are met. For purposes of estate planning, we want to make sure we have a Guardianship Directive in place.

How is Designating a Temporary Guardian Different than Designating a Permanent Guardian?

It is important to keep in mind is that designating a temporary guardian has different goals than designating a permanent guardian in a will (for when all persons with parental authority are dead). When we’re in a temporary situation, we’re hoping to resume life as it was; i.e., the parent is able to resume parental authority when they come out of a coma. In this case, we want to continue the lives of the children as normally as possible - stay close to home, keep going to school, be near their support, etc. In a permanent situation, we’re looking to make sure that the child is raised in the way we want them to be raised. Here we look more to things like age of the guardian, parental philosophy, religious preferences, etc.

If you want to discuss putting together a Guardianship Directive or need to discuss planning for your minor children, please do not hesitate to contact Signature Law to schedule a free consultation!