Single Parents: Who Will Care for Your Kids if Something Happens to You?

By Michael Fiffik, Esquire

When I ask parents if they have plans for who would care for their kids if they were to die or suffer a major health event unexpectedly, I’m always surprised at how many do not.

“I know I should, but it keeps slipping down my to-do list,” one mother told me.

Yet another said, “I don’t have anyone who I’d trust with my kids.”

A married couple told me, “death isn’t an option for us.”

I get it. Life is busy, and dying and major injury are not at the top of the list of things young people worry about. But bad things do happen, and though it’s impossible to prepare for many of them, making plans for your child’s care in the event of your untimely death is a concrete step you can take to help ensure their future well-being.

Let’s be real for a moment: if you’re a single parent, every time you leave the house, your child is at risk. That may seem over the top, but it’s true. You are not alone. There are 10 million single-parent families in America today.

Don’t “Waive” Your Right to Care for Your Kids

One of your most important legal rights is the right to designate someone to care for your child when you are unable to do so. If you fail to act, you have basically “waived” this important right. You can designate a guardian in your Will to care for both the person and the estate of your children if you should pass away. This person is called a testamentary guardian. However, did you also know that Pennsylvania law allows you to designate a standby guardian if you should encounter some unforeseen circumstance other than death? This law is called the Standby Guardianship Act.

Standby Guardianship Act

The law allows a parent to designate a standby guardian for their children upon the occurrence of a triggering event. The law does not define a “triggering event” other than as a “specified occurrence stated in the designation which empowers a standby guardian to assume the powers, duties and responsibilities of guardian or co-guardian.” Thus, a triggering event might be “my death,” “my incapacity,” or “my absence from Pennsylvania for more than two weeks.” The law assumes, however, that a parent will use the power to designate a standby guardian when the parent is personally unable to care for their children.

Without this designation in place and no natural parent around to care for your child, a whole bunch of uncertainty ensues. Child protective services may take your child and place them with foster parents. You cannot assume they’ll be placed with a relative (although it’s possible). Someone (hopefully) will file a petition with the court to be appointed as guardian of your child. Because you did not have anything in place, that person might not be the one you would have chosen. May not be someone with whom your child is comfortable or who does not share your faith or values. That proceeding will take between 60 to 120 days and the ultimate decision is left to the courts. The judge does not know you or your child. It’s an impersonal process. I can only imagine how difficult this must be for children – to lose a parent and have prolonged uncertainty about their future living arrangements.

This law is not intended as a vehicle by which a child can be forced onto another, and the commencement of a standby guardian’s authority cannot by itself divest a parent of any parental rights or obligations. This law cannot be used by one parent to circumvent the legal rights of the other parent even if, for instance, the parent with primary physical custody of the children wants to designate a standby guardian other than the non-custodial parent. If both parents consent, however, they can together designate a standby guardian.

The law also provides a mechanism to automatically take away the powers of a standby guardian if the parent who made the designation regains their capacity. Additionally, the parent can revoke the standby guardianship either before or after the standby guardian files a petition to have the guardianship confirmed.

Here's What You Can Do

The Standby Guardianship Act is a powerful tool in the arsenal of parents. Even if you have a will that designates guardians for your children, you should consider having a Standby Guardian designation. The primary reason is that a will is only effective in the event of your death. It is inapplicable to situations arising from your incapacity or absence for a prolonged period of time. In the event of your death, the guardianship provisions in your will are not effective until you will is filed with the courts. There is typically a delay between your death and the beginning of the probate process. A Standby Guardianship designation allows for the quick, easy transition of authority from a parent to a guardian in any situation.

If you’re a parent anywhere in Pennsylvania and need help with custody or guardianship, or would like to discuss Wills, Powers of Attorney, Guardianships or general Estate Planning, the attorneys of Fiffik Law Group have the experience to represent you. Contact us today to schedule an appointment. We will be happy to advise you about all matters of Estate Planning.