STANDBY GUARDIANSHIP:

A New Tool for Those Caring for Children

by Leticia Meana

SeniorLAW Center

Over 60,000 children in Philadelphia are being raised by someone other than their birth parents, often grandparents, great-grandparents or other older relatives.  Many older adults who are parenting young children are concerned about what will happen to these children if they should become unable to handle the responsibility alone or when an emergency arises.  Recent legislation in Pennsylvania provides a new tool for parents and those acting as parents to help plan for the day when they may be unable to care for the children they’re raising. 

The Pennsylvania Standby Guardianship Act allows parents and caregivers to designate someone to immediately act as a child’s legal guardian in the event of death or grave illness.  Thus, a parent or caregiver can make a secure plan for their children’s care without limiting or terminating their parental rights.  This Act applies equally to grandparents and other elders who have legal custody of the young children they are raising.

The Standby Guardianship Act creates a legal procedure for parents and legal caregivers who are ill or may become ill to designate a trusted relative or other caretaker to “stand by” and act as a child’s legal guardian immediately upon the parent or legal custodian’s incapacity or death.  Parents or legal guardians will be able to use standby guardianship to make long-term plans for the future of the child or to immediately designate a guardian in an emergency.

What were the legal options available before the Standby Guardianship Act?

A guardian can be designated in the parent or legal caregiver’s will, but this designation will not become effective until a judge approves it well after the death of the designator.  Moreover, at the time of their death, the parent or caregiver would not have any certainty about who would care for the child.  While waiting for the guardianship to be approved, children are in “legal limbo,” with potential barriers to school enrollment and medical care, and even the possibility of placement in foster care.  It also means that no one has legal responsibility to care for the child if the parent or legal custodian becomes incapacitated.

A parent can also appoint someone to exercise a power of attorney to take care of the child in an emergency. However, the designated person will only have limited authority, and most importantly, that authority expires upon the death of the principal.

Other options are shared custody, foster care or adoption. A parent or a legal custodian can file a petition asking the court to appoint a guardian while they are alive, but this means giving up custody rights. Upon court approval, custody transfers to the guardian regardless of how healthy the petitioner is at that time.

The importance of Standby Guardianship for grandparents and other elders raising children:  Peace of mind

Standby Guardianship is a very useful legal tool for legal caregivers such as older adults caring for children.  Unfortunately, illness or aging itself may become an impediment to caring for a minor.  Older caregivers in particular can benefit greatly from the security of designating someone to assume the care of children they are raising when they are unable to handle the responsibility alone or when an emergency arises.  Frequently, the biological parents are either deceased or otherwise unable or unwilling to take responsibility.  Under these circumstances, if the caregiver does not designate a guardian to take over, the chances of placement in foster care will increase significantly.  Standby Guardianship allows caregivers who have been granted legal custody to appoint a family member or trusted friend to take over when they are no longer able to care for the child.

How does the legal procedure work?

A parent or legal custodian is able to nominate a standby guardian for the child in a simple “designation form”. This legal document transfers custodial authority to the guardian upon the occurrence of a “triggering event.”  The designator selects the specified event, choosing between a physical debilitation, incapacity or death.  All three can be selected and whichever occurs first will take precedence.  Physical debilitation and incapacity are deemed to have occurred upon an attending physician’s determination.  As long as the designator is retaining full parental or custodial rights, custody can be shared to the extent consistent with the designator’s condition.  Upon the designator’s death, the guardian assumes primary physical and legal custody of the child. 

The second step is filing a petition to get court approval of the designation.  If the parent or legal custodian is healthy enough, he or she then petitions the court for approval of the designation.  The court will determine whether the petitioner’s plan is in the best interest of the child.  If the court approves it, the standby guardian then has the power to make legal, medical and other decisions for the child should the designator become incapacitated or die.  When a parent or legal custodian becomes unexpectedly ill, or where death is imminent, it may not be possible for the parent to seek court approval.  In this case, the parent completes the legal papers without petitioning the court.  Upon the parent’s incapacity or death, the standby guardian’s authority immediately takes effect and lasts for 60 days.  Before the end of the 60 days, the standby guardian must petition the court for approval to continue to serve as guardian.

The Act retains existing rights for any non-custodial parent.  The court cannot approve a standby guardianship without first notifying the other parent and giving him or her an opportunity to be heard about the arrangement.

SeniorLAW Center assists many elders with grandparent custody and kinship care cases.  Elders can discuss a legal problem or get information by calling SeniorLAW Center’s telephone intake line 215-988-1242 Mondays through Fridays, 9 a.m. – 1 p.m., or coming to our center city offices, Mondays through Wednesdays, 9 a.m. – 4 p.m.  Most issues can be addressed initially over the phone.  For general information, please call us at 215-988-1244 or visit our website at www.seniorlawcenter.org.  

Leticia Meana is SeniorLAW Center’s Hispanic Legal Services Coordinator.