One of the most common reasons clients engage an attorney to prepare testamentary documents is to nominate guardians of the person (hereinafter, simply "guardian") for their minor children. The issue is intuitive and obvious—who will care for my child if I am gone? But even for this basic question, an effective planner will explain the client's options, educate them on the legal framework's nuances, and work with them on drafted language that reflects their informed choices.

For clients considering nominating a non-domiciliary alien (NDA) as guardian, it's important to advise them on the provisions of SCPA 707(1)(c), which both declares most NDA's ineligible but also provides a mechanism for restoring eligibility through the appointment of a co-guardian. Significantly, SCPA 707(1)(c) and the other bases of ineligibility listed in SCPA 707 apply to persons seeking any kind of fiduciary letters (namely, those petitioning the court to be appointed as executor, guardian, or trustee in a decedent's estate). However, this discussion is limited to letters of guardianship and to counseling clients on guardian-specific selection and drafting issues.

The Statute

SCPA 707 begins by affirmatively stating that "Letters may issue to a natural person or to a person authorized by law to be a fiduciary"—essentially, individuals and businesses that are licensed to be fiduciaries. The remainder of the provision identifies six classes of persons who are "ineligible":