Can a non-relative be named guardian in a will?

Full question:

My friend who is a widower has been diagnosed with terminal illness. He has a 3-year-old daughter and wants to include my name in the will as her guardian. Does the law permit a person not having any blood relationship with a child to be named her guardian?

Category: Marriage
Date: 04/07/2025
State: New York

Answer:

In New York, a living parent can name anyone they believe is suitable to care for their child as a guardian in their will. This person does not need to have any blood relation to the child. According to N.Y. Dom. Rel. Law § 81, the surviving parent has the authority to appoint guardians for their child’s custody and property through a properly executed will. This appointment remains valid even if the other parent has passed away or is deemed incompetent at the time of probate. If both parents die and have appointed different guardians, the surrogate's court will decide which appointment best serves the child's welfare.

It’s important to ensure that the will is properly executed and admitted to probate for the guardian to exercise their authority.

This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.

FAQs

How to get legal guardianship of an adult?

To obtain legal guardianship of an adult, you must file a petition in the appropriate court. This process typically involves demonstrating that the adult is unable to make decisions for themselves due to incapacity. You will need to provide evidence, such as medical reports, and may have to attend a hearing. If the court finds that guardianship is necessary, it will appoint you as the guardian, granting you the authority to make decisions on their behalf. It's advisable to consult with an attorney to navigate this process effectively.

What rights do you lose under guardianship?

Under guardianship, the individual may lose certain rights, such as the ability to make personal decisions, manage their finances, or consent to medical treatment. The extent of rights lost can vary based on the type of guardianship established. For instance, a full guardianship may restrict more rights than a limited guardianship, which allows the individual to retain some decision-making power. Always consult with a legal professional for specifics regarding your situation.

Does permanent guardianship terminate parental rights?

Permanent guardianship does not automatically terminate parental rights, but it can significantly limit a parent's authority over their child. In cases where a court grants permanent guardianship, the guardian assumes responsibility for the child's care, while the biological parents may still retain some rights. However, if a court determines that parental rights should be terminated, a separate legal process must occur. It's important to seek legal advice to understand the implications fully.

Can a legal guardian restrict visitation?

Yes, a legal guardian can restrict visitation if it is deemed in the best interest of the child or the individual under guardianship. The guardian has the authority to make decisions regarding the person's welfare, which includes managing who can visit. However, if there are existing court orders regarding visitation, the guardian must adhere to those. It's advisable to consult with an attorney if there are concerns about visitation rights.

How to get custody of a disabled adult?

To gain custody of a disabled adult, you must file a petition for guardianship in the appropriate court. This process involves demonstrating that the individual cannot manage their own affairs due to their disability. You will need to provide supporting documentation, such as medical evaluations, and may need to attend a court hearing. If the court finds in your favor, it will grant you guardianship, allowing you to make decisions on their behalf. Legal guidance is recommended to navigate this process.

In which type of guardianship do parents not lose their parental rights?

In a limited guardianship, parents typically do not lose their parental rights. This type of guardianship allows parents to retain some decision-making authority while granting the guardian specific responsibilities. The court will outline the scope of the guardian's powers, which can vary based on the needs of the child or individual. It's essential to understand the terms set by the court and consult with a legal professional for clarity.