If you are a parent with AIDS, one of the hardest things you will ever have to do may also be the most important -- planning what will happen to your children if you die or become too ill to care for them.

There are many benefits to developing a plan for the future care and custody of your children. Planning can ensure that your children will be raised by someone you trust, who will provide for them, love them, and bring them up as you would like. A good plan can provide your children stability during a difficult time of transition, loss, and change. Knowing that, whatever happens, your children will be well cared for can give you peace of mind now.

An effective plan requires both thought and action. It is not enough simply to make a decision and keep your plan in your head. It is important that you touch all the bases and make your plan as binding as possible.

The first step is discussing the plan fully with the person you would like to have become the children's caretaker and, if your children are old enough, with the children themselves. Unless you talk to the potential caretaker, you have no way of knowing whether she or he is willing to take on the responsibility, agrees with the plan, and is the right person for the job -- whether this is the right plan for your children.

It is also absolutely necessary to consider the legal and financial aspects of the decision: Will the caretaker be able to get benefits for the child? Will the caretaker have legal rights to make decisions for the child? Will someone else -- a non-custodial parent, for example -- be able to challenge the caretaker's right to care for the child? If the other parent is still alive, there is a legal presumption that that parent should care for the child or help decide who the future caretaker should be. To have the rights of the other parent set aside in favor of another caretaker, you must prove extraordinary circumstances and that the other parent is in some way unfit. To evaluate these issues fully, it is usually advisable to speak to a lawyer. You want to make sure that no problems will arise later, when you are no longer around to make sure that your wishes are carried out.

Standby Guardianship

A parent or legal guardian with a serious illness can designate a standby guardian in writing or have a standby appointed by a court. Standby guardianship is different from a regular guardianship in that the parent does not give up any rights now -- the guardianship goes into effect only when the parent becomes unable to care for the children as the result of mental incapacity, physical debilitation, or death.

A designation document appoint-ing a standby guardian must be signed in front of two witnesses. If the parent dies or becomes debilitated or incapacitated, the guardianship automatically goes into effect for sixty days. In order to remain the guardian for a longer period, the standby guardian must petition the Family or Surrogate's Court for guardianship within the sixty-day period.

A standby guardian can also be appointed by a judge in Family or Surrogate's Court. Having the standby guardian "pre-approved" by the court is sometimes a good idea if the parent fears a dispute (by the other parent, for example).

Guardianship

A guardianship petition can be filed by the parent or the proposed guardian in either Family or Surrogate's Court. (Only the Surrogate's Court can appoint a guardian of a child's property.) The other parent and any child age 14 or older must agree (consent) to the guardianship or be given notice of the court proceeding. Other adults living with the proposed guardian may also have to agree to the guardianship.

When a guardianship petition is filed, the court checks to see if a report of child abuse or neglect was ever made and substantiated against the proposed guardian. A person who has been convicted of a felony cannot usually be appointed a guardian, although it is sometimes possible to get a "certificate of rehabilitation" if the conviction was not recent and was not for a serious or violent crime.

Once the court enters an order granting the petition, the guardian's powers are effective immediately, and the guardian replaces the parent as the decision-maker for the child.

Naming a Guardian in a Will

Naming a guardian in a will is no guarantee that the court will appoint that person, but it is proof of the parent's wishes. Asssuming no dispute and no abuse or neglect report, the court will usually honor the choice.

A will must be prepared by a lawyer and is not effective until the parent dies. At the time of death, the proposed guardian must go to Surrogate's or Family Court and petition for guardianship.

Custody

For most purposes, there is no significant difference between guardianship and custody, but sometimes one may be preferable. For example, a person who has been convicted of a felony usually cannot become a guardian but may be granted custody.

Temporary Care and Custody

A parent may give another person permission informally to make medical and educational decisions for a child when she or he is unable to do so. The parent remains the child's legal guardian. A temporary care and custody agreement is not a legally binding document and is not a substitute for a court order naming a guardian. Schools and doctors cannot be forced to honor a temporary care and custody agreement, but they generally do.

Early Permanency Planning

EPP is part of the Administration for Children's Services, New York City's foster care program. Parents who want their children's future caretaker to become the children's foster parent can ask ACS to certify the caretaker now so that when time comes he or she will be a certified foster parent. The primary advantage of the program is financial, although needed social services are also more readily available to foster parents than to uncertified caretakers.

Parents may also apply for EPP when there are no friends or family available to care for the children. In these cases, it is up to ACS to identify potential caretakers.

Upon placement, ACS remains the legal custodian and has the right to remove the child if it believes it is necessary to protect the child. It is best to consult a lawyer before going to ACS.

Adoption

With this option, the parent gives up all rights with respect to the child and can no longer make any decisions for that child. The child gains the right to inherit from the adoptive parent, and, in some instances, collect survivor's benefits. At the same time, the child loses these rights with respect to the biological parent.

Cathy Bowman is Deputy Director of the HIV Project at South Brooklyn Legal Services.

Back to the January 1999 Issue of Body Positive Magazine