By: Chris Arakaky  [9/28/22]

As terrible and unfortunate as childhood bereavement may be, it is sadly more common than we might expect. In fact, about 6.5 percent of children ages 0-18 will experience the death of at least one parent. Estate planning is a difficult topic enough as it is, but the issue of guardianship is especially so. The death of a child’s parent or parents is going to be a horrific situation, no matter what. However, prior planning can at least help avoid any unnecessary exacerbations caused by the legal system.

If a minor’s parent has tragically passed away, then the other biological parent will, by default, have custody over the child. However, if the other parent has had their parental rights terminated, is not involved in the child’s life, is incarcerated, is too sick or physically unable to care for the child, or died with the other parent in an accident, then the court will generally defer to the nominated guardian in the last will and testament. Although the court usually seeks to honor the parent’s guardianship desire as outlined in their last will, it will always have the final authority to make the decision and will still apply the best interest of the child standard if there are any questions about the fitness of a proposed guardian. 

One problem that arises is what happens to the child in the interim period. It takes time to file the guardianship petition with the court and the child needs to be cared for while the legal process is running its course. The nominated guardian may have little time to prepare if there was a sudden, unexpected death, and they may not live nearby. In fact, sometimes the nominated guardian may not even live in the United States! During this interim period, the child might be taken into custody by the Commonwealth and become a ward of the state. Most parents would consider this to be a very bad turn of events. 

Written Designation of a Standby Guardian

Fortunately, there is a way Virginia parents can prevent this situation from arising. Virginia law allows parents to designate “standby” guardians via a written designation:

A parent may execute a written designation of a standby guardian at any time. The written designation shall state:

    1. The name, address, and birthdate of the child affected;
    2. The triggering event; and
    3. The name and address of the person designated as standby guardian or alternate.

Code of Virginia § 16.1-352

A “triggering event” is (i) a determination of incompetence; (ii) a certificate of death of the parent; (iii) evidence of the detention, incarceration, or deportation of the parent connected to an immigration action; or (iv) a determination of debilitation and the qualified parent’s written consent to such commencement. Once the triggering event occurs, the standby guardian will have immediate authority to act as the minor child’s legal guardian. Within 30 days of the triggering event, the standby guardian will need to petition the court to approve the standby guardianship, otherwise, their authority will cease (but it will recommence upon such filing). If the triggering event is the death of the parent, a petition for permanent guardianship must be filed with the court within 90 days of the triggering event. 

People with minor children usually have said children at the forefront of their minds when they are setting up their estate plan. A living trust and/or a last will allows for long-term planning of how the estate will be used to take care of the children and long-term custody. But the immediate need of a child with a deceased parent should also be taken into consideration, especially if the parents do not have any immediate family members nearby where they live.

The dedicated attorneys at Dunlap Bennett & Ludwig can provide excellent legal counsel to assistance you with taking care of any documents you may need to make sure your loved ones are taken care of. To learn about how Dunlap Bennett & Ludwig can assist you with your legal needs, contact us by calling 800-747-9354 or by emailing clientservices@dbllawyers.com.


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Posted in: Estate Planning

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