Will the Court Allow Me to Appoint a Back-up Guardian?

Family members considering guardianship sometimes ask about having a “back-up” or “replacement” guardian appointed at the same time as the guardian.  Most frequently, this question arises when older family members are pursuing guardianship of a younger family member (usually parents on behalf of a child).  The thinking makes sense – if something were to happen to the guardian, why not have someone already in place to take over, and avoid the need for a new proceeding to have that person appointed?

Unfortunately, courts will not appoint someone as a “back-up” guardian with the authority to act in the event the “primary” guardian cannot, because the court must evaluate a potential guardian at the time he or she seeks to be appointed.  Even if the would-be back-up guardian is acceptable now, there may be reasons that he or she will not be appropriate in the future, when it is time to act.

One way some people choose to address this issue is to request that the “primary” and “back-up” guardians be appointed together as co-guardians.  This authorizes both people to act on behalf of the incapacitated person and avoids the need for a separate proceeding if something happens to one of the co-guardians in the future.  However, unless one co-guardian dies or resigns, the co-guardians must act together.  Depending on the circumstances, therefore, there is a risk that co-guardianship can become cumbersome, and if the co-guardians are unable to agree on a particular course of action or decision, court intervention may become necessary.  Therefore, co-guardianships are generally not recommended except in special circumstances.

If you choose not to opt for co-guardianship, keep in mind that some courts will permit an expedited proceeding when a guardian wishes to resign and have a new guardian appointed, as long as a family member is going to be appointed as the substitute and no one objects.  Regardless of the circumstances, because of the different requirements that may be involved, it is worthwhile to consult an attorney when starting, ending, or modifying a guardianship.

If you have any questions about this post or any other related matter, please email one of our estate planning and administration attorneys.