Written by David A. DeJarnett

Many of us are aware of the need to appoint by our last will and testament a guardian for our minor children. However, a circumstance that is often overlooked is the guardianship of a minor child if both parents or a single parent becomes debilitated or incompetent. In that situation, the last will and testament has not come into effect and the guardian designation made therein has little meaning. But the need for someone to have legal authority to manage the general welfare of the child is real.

Under current law in West Virginia, it is possible for a parent to nominate a standby guardian for a minor child in the event that the parent later becomes unable to look after the child due to severe, permanent illness or injury. A "standby guardian" is a person who is designated to temporarily assume the duties of guardian of the person or property, or both, of a minor child, on behalf of or in conjunction with a parent, upon the occurrence of a future event. A standby guardianship enables the parent to plan for the future of a child, without terminating parental or legal rights by creating coguardianship rights between a parent and a standby guardian who has the authority to act in a manner consistent with the known wishes of a parent regarding the care, custody and support of the minor child.

Over the past several decades, the need for an individual to make advance directives regarding management of their financial affairs, and health care decision-making has become common knowledge. With advances in medical technology, the vast majority of us will experience a period in our lives during which we will be unable to make our own decisions. Most often, that period comes late in life after our children have become adults. However, the chance of becoming incapacitated due to unforeseen circumstances while your children are minors is not so remote as to be ignored.

In the absence of the proper nomination of a standby guardian, there is no clearly defined mechanism under the law for an orderly and efficient appointment of a successor to the incapacitated parent. The nomination of the standby guardian must be made by means of a special designation under W.Va. Code § 44A-5-2(b) (1999). There are specific, detailed requirements that the designation must meet. The designation may be later revoked by the parent.

The person nominated may be and is often the same person nominated in the last will and testament as the guardian of the child upon the death of the parent. The designation is the first step in the process. Additional action is necessary upon the parent becoming incompetent. You should consult with your attorney about the need for nomination of a standby guardian and the precise steps necessary to do so.

The author presents these materials with the understanding that the information provided is not legal advice. Due to the rapidly changing nature of the law, information contained in this publication may become outdated. Anyone using these materials should always research original sources of authority and update this information to ensure accuracy when dealing with a specific matter. No person should act or rely upon the information contained in this publication without seeking the advice of an attorney.