Standby Guardianship Overview

What is the Purpose of Standby Guardianship?

Standby Guardianship is a means of establishing guardianship quickly to enable a parent or guardian suffering from a progressive chronic condition or terminal illness to make plans for the permanent future care or the interim care of a child without terminating parental or legal rights. 

Included in a Standby Guardianship Order is a Custody Order.  Therefore, a Standby Guardian has the same legal authority to care for the child as a parent would.  However, the Court also has the right to limit any of the powers and duties granted to a Standby Guardian. 

Who Can Petition to Appoint a Standby Guardian?

Any parent, custodian or guardian of a minor child may petition for a Standby Guardianship Order.  The Petitioner is the person currently caring for the child and is seeking the appointment of a standby guardian.  The Petitioner is the person currently caring for the child who is seeking the appointment of a standby guardian.

What are the Responsibilities of a Standby Guardian?

Assuming the Court places no limitations in the Order, the Standby Guardian will be responsible for providing for the child both physically and emotionally.  The Guardian must provide a healthy and safe living environment, an education and all the necessary and appropriate medical treatment, including but not limited to medical, dental and psychological care.  Furthermore, the Guardian will be responsible for making the following decisions:

1. Education;
2. Travel;
3. Medical treatment;
4. Right to marry or enlist in the military;
5. Representation in legal matters;
6. Welfare and upbringing; AND
7. Where the child will live.

What are the Responsibilities of the Child’s Parent after Standby Guardianship is Granted?

Because a parent’s parental rights are not terminated when a non-parent is given guardianship, the Court will determine the following:

1. How much, if any, contact the parent(s) should have with the child after the Guardianship is granted; AND
2. How much, if any, information about the child the Guardian should share with the parent(s); AND
3. A visitation schedule, if appropriate, so that the parent(s) may spend time with the child. 

In addition, the child will continue to have the right to inherit from his/her parent(s) and the parent(s) will continue to have the right to inherit from the child.  If the Guardian wishes to have the child inherit from him/her, the Guardian must state that desire in a will.  For more information on wills and inheritance rights, you should talk to an attorney.  Wills and inheritance rights are not handled in Family Court. 

The parent may have to continue to provide financial support to the child.  In other words, the parent(s) may be required to pay child support to the guardian.

Child support is handled in a separate proceeding. If the Court grants you guardianship, you must file a separate Petition for Child Support in order for the Court to consider your request for child support.  You may contact the Division of Child Support Enforcement for more information.

What are the Grounds for Standby Guardianship?

1. the child would be dependent, neglected or abused in the care of the other parent; or
2. the other parent of the child is deceased; or
3. the other parent’s parental rights have been terminated; or
4. the other parent consents to the appointment of the standby guardian.

Where the legal guardian or custodian is the person suffering from a progressive chronic condition or terminal illness , the Court must find that the appointment of the standby guardian is in the child’s best interest and:

1. that the child remains dependent, neglected or abused in the parents’ care; or
2. the parent of the child is deceased; or
3. the parents’ parental rights have been terminated; or
4. the parent consents to the appointment of the standby guardian

The Court must also find, prior to appointing a standby guardian that there is a significant risk that the parent or guardian will die, become incapacitated, or become debilitated as a result of a chronic condition or terminal illness within 2 years of the filing of the petition as certified by an attending physician.

When does the Standby Guardian assume their role?

If an Order for Standby Guardianship is granted, the Order shall say that the standby guardian assumes their role in one of two ways:
1) Upon receipt of a determination of petitioner’s incapacity, debilitation or death from the attending physician; OR 2) Upon written consent of the petitioner.

How do I become confirmed as a standby guardian?

Upon the occurrence of a triggering event (see above question), the appointed standby guardian assumes their role immediately.  If the event is incapacity or debilitation of the guardian, the attending physician shall provide a determination to the standby guardian (if the attending physician knows who the appointed standby guardian is).

• Within 30 days, the standby guardian must then petition the Court for confirmation.  The Petition for Confirmation of Standby Guardianship is Form #264 and may be found in the forms packet. 
• A determination of incapacity or debilitation or a death certificate must be attached to the Petition for Confirmation of Standby Guardianship.

What if the alternate Standby Guardian petitions for confirmation?

If the Petition for Confirmation of a Standby Guardian is submitted by the alternate standby guardian, the Petition must also state why the appointed standby guardian is unwilling or unable to act.

What if I have been appointed standby guardian but cannot or do not wish to perform the duties?

A standby guardian may decline appointment at anytime before the assumption of duties by filing a written statement to the Court, with notice (a copy of the written statement) provided to the Petitioner and the minor child if the child is over the age of 14.  Once a standby guardian has assumed their duties, they can give up their role by doing so in writing, filing this written notice with the Court and notifying the parent or guardian in writing.