What happens to my children if I die or become very sick?

If you have young children, you may worry about what will happen to them if you become too sick to take care of them, or if you die. There are steps you can take to make sure your children are taken care of by someone you know and trust. However, you must fill out some important legal forms to make sure people know which person you want to care for your children.

 

This post will explain to you the steps you must take. As you scroll down, you will see many “FAQs” (frequently asked questions). These are the most common questions people have when they want someone to care for their children after they die or if they become very sick. If you do not see your question answered in the list below, you should call a lawyer. You may have an issue that is too complicated to handle on your own.

 

You may not recognize or understand some of the legal language that is used to explain how the law works in Pennsylvania. These words will be in bold and their meanings will be explained so you can become familiar with them.

 

1. What will happen to my children if I die or become very sick?

 

If you have sole custody of your children, you can fill out a form which will tell people who you want to take care of them after you die or become too sick to care for them. Sole custody means that you are the only person legally responsible for your children and allowed to make decisions for them.

 

The form you must fill out is called a standby guardianship.

 

2. What is a standby guardianship?

 

A standby guardianship is a special legal document (form) which gives a message to the court that you want a specific person to take care of your children after you die or become too sick to care for them. The person you choose to take care of them is called the guardian.

 

3. Can I just write a note giving permission to the person I choose to take care of my children?

 

No. Pennsylvania law requires that you fill out special forms that the court will recognize.

 

4. Can I choose someone to take care of my children during times that I am very sick, but with the hope that I will get better?

 

Yes. You can choose a person to temporarily take over responsibility for your children during times when you are very sick. This person is called a co-guardian. Your co-guardian does not get custody. He or she can only make decisions about your children when something happens which makes you unable to care for them. This is called a triggering event.

 

There are two types of triggering events.

 

1. The first type of triggering event is mental incapacity. This means that your mind is too sick for you to be able to care for your children. For example, if you have a very bad memory and do not remember who your children are, it is likely that you will be unable to care for them. Your doctor is responsible for deciding whether your mind is too sick for you to care for your children. If your doctor makes that decision, the co-guardian that you chose will temporarily take over the care of your children, but only until your doctor decides you are well again. If your doctor says that you are better, your co-guardian will no longer be responsible for your children.

 

1. The second type of triggering event is called physical debilitation with consent. This means that you are physically unable to care for your children and give your permission to the co-guardian to take over. For example, if you cannot get out of bed because you are in too much pain, you may decide that you want someone else to care for your children and make decisions for them. It is important to remember that you must give your written permission to the co-guardian. It is your decision. When you decide you are well enough to take care of your children again, the co-guardian can no longer make decisions for them. However, you must tell the co-guardian in writing. This is called withdrawing consent.

 

5. How do I choose the person who will have legal responsibility for my children?

 

You must fill out a designation form. You can find an example here.

 

6. I have joint custody with my child’s other parent, but do not want them to have the child after I become sick or die. Can I choose someone else?

 

No. You cannot choose a guardian for your child if you share custody with someone else. You must go to family court and ask for sole custody first. When you ask the court for sole custody, you are asking the court to allow you to make decisions for your child without the other parent’s agreement or permission.

 

7. I have sole custody of my child, but my child’s other parent is still alive. Can I choose a guardian to take care of my child after I die or become too sick to care of them?

 

Sometimes. You can choose someone who is not the child’s parent only if one of these four is true:

 

1. The child’s other parent no longer has parental rights. Having parental rights means that you have the ability to ask the court to see the child and to make decisions for the child. These rights must have been terminated. This means that your child’s other parent has permanently had his or her parental rights taken away. Losing parental rights is not the same as losing custody. A parent who has lost custody of their child may still have parental rights, and may still ask the court to see and make decisions for the child.

 

1. The child’s other parent is dead.

 

1. The child’s other parent is unable, or does not want to care for the child.

 

1. The child’s other parent gives his or her permission for you to choose someone else.

 

You must be prepared to prove to the court that one of the above is true. Make sure you have documents that can prove what you tell the court. For example, if your child’s other parent has died, you should be ready to give their birth certificate to the court. If you tell the court that the child’s other parent has given their permission for you to choose someone else as the child’s guardian, you must have a piece of paper signed by them saying that.

 

8. Do I have to give the standby guardianship (the piece of paper choosing someone to take care of my child) to a court?

 

Yes. You or your chosen guardian must file (give to the court) something called a petition for approval. The court will read your standby guardianship paper and decide whether the person you chose to take care of your child is the best person to do the job. The court will usually agree with the person you choose.

 

9. When do I have to file the petition for approval (give the standby guardianship papers to the court)?

 

The petition for approval can be filed either before or after the triggering event. (Remember, a triggering event is something that happens which prevents you from taking care of your child, like dying or becoming very sick.) In many cases, it is a good idea to give the court your papers before you die or become very sick.

 

It is often a good idea to file a petition for approval and give the court your standby guardianship papers before you die or become very sick. This is because you will be allowed to tell the court your story and why you think that the guardian you chose is the best person to take care of your child. Here’s an example:

 

Let’s say a mother has sole custody of her daughter, Lisa. That means that only the mother is legally allowed to make decisions for Lisa. Lisa’s father is not a good parent and has been abusive in the past. The mother wants her sister to take care of Lisa after she dies. The mother creates a standby guardianship document, choosing her sister as the guardian. However, Lisa’s father is angry that he does not have custody and wants to have Lisa back after the mother dies.

 

It would be a good idea for the mother to file a petition for approval with the court BEFORE she dies. This way, the mother will be allowed to testify (meaning that she can tell her story) about how Lisa’s father is abusive and how he would be unfit to care for Lisa. The court will listen carefully to what the mother says and will make a decision that it believes is in the best interests of Lisa.

 

If the mother does not file a petition for approval before she dies or becomes very sick, it will be easier for the father to get custody of Lisa. This is because the mother will not be able to tell the court about the father’s history of abuse.

 

9. What happens if I do not ask the court to approve my standby guardianship before I die or become very sick?

 

If you do not ask the court to approve your standby guardianship before you die or become very sick, the person you chose as guardian must give the papers to the court and file a petition for approval. The guardian must ask the court to agree with your decision choosing them as the best person to take care of your child. The guardian will be able to make decisions for the child if you die or become very sick, but only for 60 days after that. Without the court’s approval, the guardian may no longer be able to make decisions for or take care of your child after 60 days.

 

10. What happens after I give my standby guardianship papers to the court for approval?

 

The court will schedule a hearing. A hearing is a period of time that you will be allowed to go to court and tell a judge why you believe they should agree with who you chose to be guardian. The judge does not have to agree with you, but will pay careful attention to what you have to say. If you have sole custody of the child, the judge will very often approve the person you chose to be guardian.

 

11. What if I change my mind about who the guardian should be?

 

If you have already filed a petition for approval with the court, you must ask the court to withdraw the petition for approval. This means that you must ask the court to throw away the standby guardianship papers you gave it before. You must do this in writing.

 

If you have not filed a petition for approval, you only need to notify the person you chose to be guardian that you no longer want them to be guardian. You must do this in writing. After that, simply throw away the standby guardianship papers.

 

12. Can I put the person I choose to be guardian for my children in my will instead of using a standby guardianship?

 

Yes, but there are important reasons why it is better to use a standby guardianship instead of a will. After you die, your will must be probated. This means that the will must be given to the court, and the court must approve it. Usually, courts will approve what you have written in your will. However, it can often take many months after your death before the court has time to approve your will. During those months, the person you chose to be guardian in your will might not have the legal ability to make decisions for your children.

 

With a standby guardianship, the guardian you choose will have legal responsibility for your children and can make decisions for them immediately after you die or become very sick.

 

13. I don’t live in Pennsylvania. Can I still use a standby guardianship?

 

It depends. If you don’t live in Pennsylvania, you need to find information on how the law works in your state. The information here is specific to Pennsylvania.

 

14. I live in Pennsylvania, but the person I chose to be guardian lives in New Jersey (or another state). Is that a problem?

 

No, but it may change the steps you need to take to make sure that your guardian can begin making decisions for your children after you die or become very sick. You should call a lawyer for help if your chosen guardian lives outside of Pennsylvania.

 

15. Where can I get more information on standby guardianships?

 

You can click on the link below. The AIDS Law Project has prepared a detailed guide about standby guardianships in Pennsylvania. Please keep in mind that their guide is written for lawyers.

 

http://www.aidslawpa.org/get-help/legal-information/standbyguardianship/

 

The Pennsylvania law on standby guardianships can be found here:

 

http://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/23/00.056..HTM

PLEASE NOTE:  This website and the posts on it are intended as information and not as legal advice on which you should rely.  You should seek help from an attorney if you are seeking legal advice about a particular problem.