What is a “Substitute Guardian Document”
Who will take care of my children if “God forbid” something happens to me or my partner?
The ideal solution for single parents and parents of a special needs adult
In the heart of every parent lurks the paramount concern that they may no longer be able to take care of their children in the event of a tragic occurrence (death or a medical condition that prevents them from functioning). In the case of single parents, this concern is compounded since the lack of a partner means there is no other natural guardian for the children. It is important to note that this concern is relevant not only to a parent of minors but also to a parent who is the guardian of a special needs adult who is unable to care for himself.
The parent of a minor, or guardian of a relative, including a “guardian by estoppel” (someone who assumes care for a person without being legally appointed the guardian), can state, in their will, the name of the person they want to appoint as guardian of the child (or relative) following their death.
The Substitute Guardian Document is a legal document that enables the parent of a minor, or a guardian who is a relative of a minor or adult (including a “guardian by estoppel”), to state who will assume guardianship if, during their lifetime, due to disability (such "as non-compos mentis"), they cease to be capable of caring for their child or relative and of making decisions concerning their charge. During the proceeding to appoint a substitute guardian, the court is obliged to examine the Substitute Guardian Document and to take it into account. The final decision, however, rests with the court.
Furthermore, in order to determine the identity of the substitute guardian the petitioner (the person/parent submitting the Substitute Guardian Document) may give “Advance Personal Guidelines” to be carried out in the event they are no longer competent to care for and make decisions regarding the child or relative. In other words, a person can give instructions that take into account future circumstances, should they no longer be competent to make decisions. A testator may also (in addition to appointing a substitute guardian in his will) leave Advance Personal Guidelines for the substitute guardian to carry out following his death.
As we see, the Substitute Guardian Document addresses cases in which a parent (or guardian) is living but unable to take care of the person (minor or adult) they are responsible for, or for whom they are acting as guardian. For example: a single parent suffers a stroke that leaves the parent incapacitated, or an accident that leaves both spouses incapacitated. It is important to mention that if one of the spouses is still competent then that spouse continues to be the natural guardian of his children and there is no necessity to appoint a legal guardian.
It should be noted that grandparents, uncles/aunts, and other relatives, are not necessarily substitute guardians and the court will appoint a guardian for the minor after careful consideration, taking into account all family circumstances.
Who can request the Substitute Guardian Document?
Parent of a minor
A current effective guardian who is a relative (partner/spouse, mother/father, brother/sister, grandparent, grandchild) of the ward
Guardian by estoppel – a relative (as defined above) who is the de facto guardian, although not legally appointed
How to draw up the Substitute Guardian Document
The Substitute Guardian Document is drawn up by a lawyer who has undergone special training and received accreditation by the Guardian-General’s Department of the Ministry of Justice. Once the document has been drawn up and signed by all the relevant parties, the lawyer registers it digitally in the computerized register of the Guardian-General’s Department.
What can be covered by the Substitute Guardian Document
The document can address the appointment of a substitute guardian for all, or part, of the following issues: property, medical and personal.
The petitioner states the identity of the person they choose to act as Substitute Guardian and can also give Advance Personal Guidelines to the substitute guardian who will be appointed.
Advance Personal Guidelines: Advance Personal Guidelines are, in fact, a significant element of the Substitute Guardian Document and are meant to instruct the substitute guardian how to act and care for a loved one if the need arises. Advance Personal Guidelines can cover a range of issues, such as finances, living environment, raising a child, values to be imparted, type of education, and anything else that addresses future contingencies. For that reason, it is highly recommended that Advance Personal Guidelines be included in the Substitute Guardian Document.
The document can also specify either one, or several, substitute guardians and, in the case of guardianship of an adult, also corporate guardianship.
It is also possible to attach to the Substitute Guardian Document any document deemed to be of importance, such as an inventory of assets, important contact persons, medical information, or any other pertinent document.
The substitute guardian must agree to the appointment, read the document and sign it in the presence of a lawyer.
The Substitute Guardian
An order of appointment issued by the court authorizes the appointed substitute guardian to act on behalf of his ward on all or part of any property, medical and personal issues.
A guardian appointed to attend to personal issues will be responsible for the personal welfare of the minor/adult, his daily needs, place of abode, health, as well as any physical, psychological, or social concerns.
A guardian appointed to attend to medical issues will be responsible for any medical issues.
A guardian appointed to attend to property issues will be responsible for all the assets, monies, and obligations of the ward.
The court will give priority to the requested appointment (subject to an assessment of the welfare of the potential ward) and will instruct the substitute guardian to comply with the instructions stated in the Substitute Guardian Document. Before the court appoints a guardian for an adult (or gives Advance Personal Guidelines), it must hear the opinion of the potential ward and assess whether they are able to understand what is happening and express an opinion.
Following the appointment, the substitute guardian is subject to the instructions of the court and the supervision of the Guardian-General’s Department of the Ministry of Justice.
Salary for the substitute guardian: The court may grant the substitute guardian a salary that will be paid from the monies of the ward. The substitute guardian is also entitled to reasonable reimbursement for expenses incurred in this capacity.
Registration of the Substitute Guardian Document with the Ministry of Justice
As part of the process, the lawyer will register a digital copy of the Substitute Guardian Document in the computerized system of The Guardian-General’s Department in the Ministry of Justice.
As the final stage of the process, the Ministry of Justice will notify the lawyer that the document has been either accepted or rejected.
Once the document has been registered, every three years the Guardian-General’s Department will send a “reminder” to the petitioner to ascertain whether an amendment is required, due to a change in circumstances, or for any other reason.
When requesting the appointment of a guardian it is important to be aware that the courts check with the Guardian-General’s register of documentation whether a Substitute Guardian Document has been deposited.
Activation of the Substitute Guardian Document
The court is the authority that appoints the substitute guardian and, when the time comes, will review the instructions of the Substitute Guardian Document and decide whether to grant approval. The court has sole discretion to decide how to act and is not obligated to comply with the instructions in the Substitute Guardian Document. However, the court does attach great importance to the document, and as long as there in no detriment to the welfare of the ward, it will approve the document without amendments in order to comply with the wishes of the petitioner.
Annulment / Amendment
At any time, the petitioner may annul the Substitute Guardian Document by notifying the Guardian-General’s Department of the Ministry of Justice in writing. The petitioner may also amend the document at any time by drawing up a new document (which replaces the existing one) and registering it digitally in the computerized register of the Guardian-General’s Department.
Advantages of the Substitute Guardian Document
Provides prior arrangements to take care of the future of your child; you are able to state your wishes, in a timely manner, clearly and in writing, so that your family (and the court) know in advance how you would want them to act in the interests of your child.
Offers opportune action to simplify and facilitate the situation and preempts dissension among family members in the event of an unexpected, tragic event.
Enables the substitute guardian to function efficiently when carrying out your Advance Personal Guidelines, and you enjoy peace of mind knowing that everything is taken care of.
The process of drawing up the Substitute Guardian Document
This will entail two meetings with a lawyer who has undergone special training and received accreditation from The Guardian-General’s Department in the Ministry of Justice.
In the first meeting, we will meet so that I can get to know you and hear about your family. You will be given an explanation of the legal ramifications and the various options. It is also the opportunity to discuss the specific needs of your loved one. The meeting will last approximately two hours. Following the meeting, when necessary, we will discuss by phone things you may have thought of after the meeting and I will begin formulating the instructions you want to be included in the Substitute Guardian Document.
Our second meeting will take place together with the potential substitute guardian. They will be given a background explanation and together we will clarify their function and your instructions and get their feedback. We will coordinate the expectations you both have and complete formulating the document. The meeting will last about two hours and at the end you and the prospective substitute guardian will sign the Substitute Guardian Document.
Immediately afterward, I will deposit the document digitally with The Guardian-General’s Department in the Ministry of Justice. Naturally, both you and the substitute guardian will receive copies of the document.