Although it can be an emotionally-difficult task, if you are the parent of minor children, you should make arrangements for their future care. With proper planning, you can make sure that your children will have good care in the event that you become too ill to provide for them.

Arrangements for the future care of children require formal legal procedures. Therefore, you should consult the legal department at a local AIDS service organization or a private attorney.

The most common ways of making plans for the future care of children are the following:

Guardianship is a legal arrangement that allows you to appoint someone else to care for your children in case you become disabled. The legal guardian has the right to act as the children’s parent and can make important decisions for the children, including decisions about health care, education, and housing. A parent should choose a guardian who is dependable and capable of providing a high level of care and stability in the children’s life.

Making someone a legal guardian of your children requires a court hearing. At the hearing, you must explain to the judge why you want someone else to take care of your children. The person you want to name the guardian is called the designated guardian.

The designated guardian must also appear in court and demonstrate that he or she is a person over 18 years old and has never had a felony conviction. The court will investigate the designated guardian to determine if he or she is qualified to provide care for the children. The court will legally recognize the guardian of your children once it is convinced that it would be in the best interest of the children.

In making these arrangements, you must understand that both parents may have parental rights to care for the children, even if one parent has never been involved in the children’s life. If you believe that placing your children with their other parent would be bad for them, you obtain a court hearing to testify why your selected guardian would be a better caregiver than the other parent. The court can make the legal decision, based on the evidence, as to which person would make a better guardian.

The guardianship arrangements you make now do not have to be permanent. You can make changes in the future if you decide you would like different arrangements for your children.

Standby guardianship allows a parent to take care of his or her children until he or she can no longer do so. Once the parent becomes incapable of providing care to the children, the standby guardian can take responsibility and has legal authority for 90 days after the parent becomes incapacitated. Within 90 days the standby guardian must make a legal request for guardianship of the children in order to maintain legal authority.

To make standby guardianship arrangements for your children, you need to go to court. You must tell the court that you have HIV, which is a potentially-debilitating illness that could cause you to be unable to care for your minor children. You must also tell the court who you wish to name as the standby guardian. If the court approves of the guardian, the standby guardianship will be legally recognized.

You can designate a guardian in your Will to make plans for the care of your children after you die. However, you should not rely on your Will to make this determination because it is not legally binding on the court. While the court would view the designation as strong evidence of your intention, it’s possible that the court would make a guardianship decision different from the one you wanted. In most cases a parent should make formal guardianship arrangements in addition to designating a guardian in the Will.

Parents can also arrange for future care of their children through adoption. With adoption, the biological parents give up all of their legal rights to their children. The adoptive parents take full parental rights and obligations, which are legally recognized and enforced. For this reason, many parents are reluctant to arrange for adoption of their children.

An adoption decree would terminate the biological parents’ rights to custody and visitation. The adoption process can be time consuming. Both biological parents, if still alive, must consent to an adoption and the court must conduct investigations regarding the suitability of the adoptive parents.

Some states recognize standby adoptions, in which the adoptive parents take legal parental rights over the children after the biological parent(s) becomes too disabled to care for the children or dies. The standby adoption arrangement is often more attractive to parents because they do not lose their parental rights until they become too ill care for their children or die.

If you are living with a potentially-debilitating illness like HIV, it’s wise to make formal arrangements for the future care of your children as soon as possible. A parent’s failure to make these arrangements will result in the state having to make decisions about the future care of the children in the event of the parent’s incapacity or death. Unfortunately, it’s possible that a state decision, though well-intentioned, could go against a parent’s wishes or cause unintended confusion and disruption to the child.

Look into the pros and cons of the various methods. It may help to talk to a social worker or counselor about the emotions and concerns that these issues bring up. In order to save your family, your children and yourself difficult decisions during an acute illness, it is best to make your wishes known concerning your children’s care sooner rather than later.

1		National AIA Resource Center. (2003). Standby guardianship: Retrieved July 2003 from http://ist-socrates.berkeley.edu/~aiarc/media/pdf/standby_guardianship_fact_sheet_2003.pdf
2		Wilfert, C., et. al. (1999). American academy of pediatrics: Planning for children whose parents are dying of HIV/AIDS. Pediatrics 103(2). 509-511: Retrieved July 2003 from http://aappolicy.aappublications.org/cgi/content/full/pediatrics;103/2/509