Family court (by David Lat).
One usually associates the term “guardian” with the death of a parent. When an individual dies with a minor child, a court must authorize a guardian to act on the minor’s behalf until she reaches the age of majority. In some jurisdictions, a guardian, or conservator, may also refer to an individual or entity who is charged with acting on behalf of one who is deemed incapacitated. It is also possible that a guardian be appointed for a child, while her parents are alive, but are suffering a disability or setback that renders them unable to care for the minor.
In August, comedy icon Carol Burnett, at the age of 87, together with her husband, Brian Miller, has petitioned a Los Angeles Superior Court for temporary guardianship of her grandson, Dylan, son of Burnett’s daughter, Erin Hamilton. Their application has been granted, and they will remain temporary guardians of their grandson through Jan. 8, 2021. The impetus for the proceeding was Dylan’s parents’ ongoing struggles with substance abuse. Hamilton has been in and out of rehab for several years, afflicted with substance abuse. Tony West, the child’s father, has reportedly checked himself into rehab and as such is unable to provide care. The record for the matter reveals a Department of Children and Family Services investigation and juvenile dependency proceedings.
As temporary guardians, Burnett and Miller will oversee the general welfare of their grandson. This means that they may choose education, make health care and financial decisions and manage his residency and day-to-day activities. Upon the parent(s)’ recovery, a court can terminate the guardianship. If the disability persists, so too can the guardianship.
In cases of a death, a last will and testament states a testator’s choice of guardian for his minor children. A last will also nominates a trustee to manage the minor’s assets. Many jurisdictions additionally provide the legal framework for the appointment of a standby guardian which permits immediate control to pass to the standby guardian who has no powers until a triggering event occurs. In cases of an incapacitated or gravely ill parent, the transfer of guardianship can happen quickly and with little to no court intervention. Of course, the appointment of a standby guardian takes foresight. In cases where an emergency arises, such as parents who fall ill, a petition must be made to the court, such as Burnett has pursued.
One of the legal trends of COVID-19 has been the execution of last wills and testaments by families in order to provide for their children in the event of death. Many who work on the front lines have also executed standby guardian documents. In some states, orders have been enacted making standby guardian appointments easier to effectuate. For example, in New York, following the pandemic, an executive order permitted an individual to appoint a standby guardian if the parent/guardian worked or volunteered in a healthcare facility or reasonably believed that they may otherwise be exposed to COVID-19.
Burnett’s appointment as temporary guardian is especially noteworthy because of her age. She is 87 years old, and her husband is 64. Many clients veer away from appointing an older generation as guardian, for fear of disability or illness, rendering the grandparents unable to serve. On the other hand, many grandparents make excellent choices for guardians because they are financially comfortable, retired, and feel a familial if not parental obligation to care for their own grandchild in a time of distress. Of course, being monetarily comfortable makes it easier to be a guardian in the event a grandparent opts to hire assistance such as a nanny or a tutor when raising young children.
Interestingly, Burnett herself grew up with her grandmother, Mabel Eudora White, moving in with her in Hollywood after her parents divorced. She eventually studied theatre at UCLA and became one of the most successful and influential comedic actresses of all time, shining on both stage and screen. She is likely most famous for her 1970s comedy sketch program, The Carol Burnett Show, which birthed and coddled many comic treasures, including the sit-com, appropriately named, Mama’s Family. Having won and been nominated for a multitude of Peabody, Emmy, Golden Globe, and Grammy awards, Burnett is also the namesake of the Hollywood Foreign Press Association’s Carol Burnett Award, for outstanding contributions to television. She has also received the Kennedy Center’s Mark Twain prize for American Humor. Having achieved all of this and more, at 87, it looks like Grandma raised her well.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.