Guest post by Patrick Hicks, the Head of Legal at Trust & Will
Life is unpredictable, and sometimes something we never thought would happen to us happens all of a sudden. If you are a godparent, uncle or aunt, or close friend, you may be listed as someone who will become the legal guardian of a dependent if their previous parent or guardian passes away, or else otherwise becomes unable to take care of them.
In addition to the emotional grief, turmoil and strain caused by a loved one’s sudden passing, there are many logistical issues to settle as well. And, especially if you’ve unexpectedly taken over legal guardianship of a minor or disabled person, you may be scrambling to figure out what your next steps should be. Let’s carefully move through a few steps you should take immediately if you find yourself unexpectedly becoming a legal guardian.
Establish your role as a caretaker
If you’ve recently become the guardian of a child or disabled individual, it’s likely because their previous guardian identified you as a worthy and capable caretaker for their dependent. Whether because you are their sibling, a close friend, or another relative who they deemed best able to take care of their dependents should they pass or become otherwise unable, you have been selected for this responsibility.
The first thing you need to do is also the most central: look after the dependent who has been left in your care. In all likelihood, right now is a time of immense grief and pain for them, and they need someone in their life who will provide strength, courage, and love in the face of their fear and sadness. Taking care of a dependent in the difficult transition from their previous guardian to your care can entail a few different things.
- First, there are basic day-to-day matters to consider. Do they need rides to school every day? Will you be able to provide meals to them consistently? How will taking care of a dependent interfere with your work schedule? Settling these questions should be a top priority, as the dependent’s wellbeing will rely on your ability to be there for them both physically and financially.
- Second, emotional understanding and grief support are likely needed to help the dependent work through this disruptive and painful time. If their parents have passed, they are probably dealing with an unprecedentedly painful time in their life, and your guidance and support are dearly needed. And even if their previous guardian is still alive but is for some other reason unable to care for the dependent, they will still be faced with the turbulent and difficult prospect of changing homes. Providing emotional resources for your dependent should be something you constantly are aware of.
- Third, help your dependent continue to live their life. When something as tumultuous as changing households due to a deceased or infirm guardian happens to a young person (or a person with a mental disability), they can struggle to pick up the pieces of their life and continue on. It’s critical that you, as their new guardian, help support them to continue their life in whatever way they wish — whether that’s driving them to friends’ houses or attending their soccer games.
Once you’ve established yourself as an emotional, financial, and logistical resource for your new dependent, it’s time to focus on the legal aspect of the transition.
Settle all legal details
When coping with the loss of a loved one and the sudden responsibility of assuming guardianship over a dependent, legal details and policy considerations are likely far from the forefront of your mind. Still, they are vital, as without establishing the proper documentation, your guardianship over the child or disabled person may be jeopardized.
In order to claim legal guardianship over your new dependent, you will need to ensure that you have been legally designated by their previous guardian in their legal will. This usually happens when someone is made the godparent of a child, and it is also often the case that guardians will make their siblings the legal guardians of their children.
If no one has been legally designated as the guardian for your child, they may be taken by the police or Child Protective Services, and eventually placed in a foster home until such time as the courts decide who the reasonable legal guardian should be. If you and the previous guardian established interpersonally that you are to be the dependent’s guardian, but it wasn’t established legally, you may be in for a hassle to establish yourself as the rightful protector of the dependent.
If the dependent’s previous guardian has not passed, but instead has become physically or mentally unable to take care of a dependent and other matters in their own life, it’s important that they also establish a conservatorship. This is usually a decree by a court or judge that a someone else will become legally responsible for the financial and daily duties of the incapacitated person. Often, this duty is imparted on a different person than guardianship over children, but it may be the same.
After emotional and legal considerations have been settled, and you have established that you are the official guardian of the dependent, you should turn your attention to the future.
Consider the long-term
Often, with an unexpected passing, many plans that may have been made can no longer be upheld. As the guardian of a child or disabled individual, it is your responsibility to help your dependent work through the logistics of future plans.
Questions you may need to ask yourself include:
- Will the dependent continue living with you indefinitely, or is there someplace where they are more comfortable that they will hope to move to once things have settled more?
- Can you support having a dependent in the long term? Do you have the financial ability, housing space, and job flexibility needed to perform your duties?
- If the dependent does stay with you, what will you do to ensure that your new dependent settles into their new life comfortably, after the initial pain and disruption has passed?
These are difficult and emotionally taxing questions — not to mention logistical difficulties — but they must be answered if you find yourself the unexpected guardian of a minor or disabled person. Taking guardianship is no small task, and may be one of the most important undertakings of your life. It requires emotional strength and clear-headed logistical considerations, and shouldn’t be taken lightly. That said, it’s also an opportunity to step it up and take care of someone who is likely experiencing a lot of sadness and confusion, which can be deeply rewarding and important work as well.
About the author
Patrick Hicks is the Head of Legal at Trust & Will, where he oversees all estate planning offerings and corporate legal affairs. Patrick has been an estate planning and tax attorney for over a decade, previously working with individual clients to create customized estate plans for their personal and business planning needs. Patrick has extensive experience in both lifetime planning and post-death administration, giving him first-hand knowledge of the importance of having an estate plan. He has also seen how many people are unable to find or afford help and wind up with no plan in place. Patrick joined Trust & Will to help make it easy for everyone to have a plan. Patrick believes new technologies will improve the legal industry and expand access to legal services, making it possible for everyone to access the help they need. Patrick holds a B.A. in Economics from Davidson College, a J.D. from Washington University in St. Louis School of Law, and an LL.M in Taxation from the University of San Diego.