The Clinical Guide to Supportive and Palliative Care for HIV/AIDS

A Clinical Guide to Supportive and Palliative Care for HIV/AIDS • Chapter 18: Legal and Financial Issuesmodification. Many courts may also require a hearing on the matter, even where, as in thisexample, the proposed change is agreed to by both parents.26 picas4. Testamentary GuardiansEvery parent living with AIDS should have a will that names a testamentary guardian for herchildren. Even if a parent living with AIDS has successfully appointed a standby guardian proxy,and that proxy has physical custody of the children at the time of the parent’s death, a will thatspecifies who the parent wishes to have permanent custody of her children upon death isimportant for a number of reasons. First and foremost, some parents may choose a testamentaryguardian who is different from the standby guardian proxy. For example, a parent may select aclose friend and neighbor to serve as the standby guardian proxy, so that her children maycontinue to attend the same schools and programs during any periods that the parent ishospitalized or incapacitated. Such an arrangement also facilitates the type of short-term “coparenting”envisioned by the standby guardianship laws, as the disabled parent is still nearbyand able to communicate her parenting preferences and concerns to the standby guardian proxy.The same parent, however, may have an entirely different wish for her children’s care in theevent of her death. Upon her death, she may express a desire that the children be raised by aclose relative, perhaps an aunt or a grandparent, who lives farther away. Thus, it is important tomake sure that her will clearly expresses this desire.Although there is no requirement that a person disclose the contents of her will to anyonebefore death, it is wise to consider a frank discussion with a proposed testamentary guardian.Certainly, it is best if a person who is in line to become the permanent caretaker of one’s minorchildren is aware of the situation beforehand. Moreover, if the parent anticipates a challenge toher testamentary guardian from a relative, it is a good idea to prepare the testamentary guardianfor the possibility of such a challenge in advance.It is very important to note that naming someone in the will as a testamentary guardian is notdispositive of the issue. The question of who will become a child’s permanent guardian upon thedeath of a custodial parent must be finally determined by a probate or family court judge in theState where the child resides. The person who is named as the testamentary guardian shouldfile a petition seeking permanent guardianship and attach the relevant provisions of the parent’swill to the petition as evidence of the parent’s intent for the child(ren). If the petitioner demonstratesan ability and willingness to care for the child, and meets the State’s requirements (typicallythe petitioner must be of a minimum age and not possess a criminal history that mightindicate the inability to responsibly care for a minor), she will be approved by the court as thepermanent guardian.It may be the case, however, that other interested family members will petition the court seekingpermanent guardianship, even though they were not named as guardians in the will. In theoverwhelming majority of states, when parents are deceased, the law recognizes a child’sgrandparents as the nearest living relatives or “next of kin” and will take very seriously a petitionfrom a grandparent seeking permanent guardianship even if the petitioning grandparent was notnamed as the testamentary guardian by the deceased parent. For advance planning purposes, aparent living with HIV should work with an attorney to prepare affidavits clearly explaining herchoice of guardian if she is concerned that her children’s grandparents, or any other close relativesthat have standing, will seek guardianship despite her clearly expressed wishes to the contrary.XVIIIU.S. Department of Health and Human Services • Health Resources and Services Administration • HIV/AIDS Bureau 385