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STANDBY GUARDIANSHIP is a legal way to select someone to care for your child in the future if you are unable to. A standby guardianship can be put into place now, while you are still healthy. You will not give up any of your parental rights. If you cannot care for your child in the future, everything will be arranged.
A standby guardian is a person selected by a parent and approved by the Probate Court to act as guardian of the parent's child. Once approved by the Court, the standby guardian remains on "standby", and the parent still has complete authority over the child until one of the following occurs:
If the parent initially agrees, in writing, to activate the standby guardian, the parent can also, at any time, revoke that decision in writing. The standby guardian will once again remains on "standby", with the parent having full legal authority over the child.
If the parent’s physician determines that the parent is incapacitated and unable to care for the child, and later determines that the parent has recovered, the standby guardian will once again go back to "standby" status, with the parent having full legal authority over the child.
Once the Court has approved someone as standby guardian, there is no limit to the number of times that a standby guardian can go in and out of"standby" status. This is particularly helpful to parents who may have an illness that requires them to go into and out of the hospital.
With a standby guardianship, the parent gives another person the legal authority to act for their child.
The easiest way to understand why a standby guardian is so important is to think about what would happen to your child without a standby guardian in place.
If a parent is unable to care for their child due to illness, or death, and no standby guardian is in place, someone will step forward to take care of the child. The problem is that it may be the Department of Social Services (DSS) or someone that the parent does not want to act as guardian for their child.
A standby guardian is an important legal tool in planning for your child’s future care. You get to decide (with court approval) who should be the standby guardian for your child. It makes sense to start this standby guardianship process while you are healthy, rather than waiting until a crisis arises.
Any adult can serve as a standby guardian, once the Court has approved them.
A will addresses issues after your death. Naming a guardian in a will means that the proposed guardian has no legal authority until after your death, and after receiving Court approval. A standby guardian not only has legal authority to act as guardian of your child after your death, but also before your death. if you consent in writing or your physician determines that you are medically too ill to care for your child. With a standby guardianship, you are protecting your child both during your life and after your death: With a will you are only protecting your child after your death.
There are several steps you need to take:
Nothing. Remember that getting the standby guardian approved by the Court is only the first step. The standby guardian at this point has no legal authority over your child. The standby guardian is still on "standby", until either;
In order for a standby guardian to legally begin to act as the guardian of your child, the standby guardian must always have two documents:
For the protection of your child, a school or a doctor will want to make sure that the standby guardian really is legally permitted to make decisions affecting your child. It makes sense for a school or a doctor to want to see the documents that prove that the standby guardian has the legal authority to act on your child’s behalf.
If an emergency arises and I have not yet gone through the standby guardianship process, is there anything else I can do?
Yes, but only in limited circumstances. There is a procedure called an Emergency Guardianship Proxy that may help you This really is an emergency procedure, and it is best to proceed with a standby guardianship, rather than waiting until an emergency arises.
This emergency guardianship proxy is available without court approval, is effective for no longer than 60 days. and must be in writing. To name someone as the emergency guardianship proxy for your child, you must either have the written consent of the other parent or you must show that the other parent is not available to care for the child. If the other parent is available, and will not give written consent, you cannot use the emergency guardianship proxy.
A standby guardianship can be a valuable tool for parents who are concerned about the future care of their children. This process may be simpler with the assistance of an attorney. If you or someone you know is interested in setting up a standby guardianship, the HIV/AIDS Law Consortium of Western Massachusetts or your local legal services program may be able to find an attorney to help you with this process. Call our office for help in beginning this process.
HIV/AIDS Law Consortium of Western Massachusetts 40 Bobala Road, Holyoke, MA 01040 413-536-5473 ext. 110 1-800-633-1890
This Program is Partially Funded by the Massachusetts Bar Foundation. Pamphlet reviewed November 1998.
Produced by HIV/AIDS Law Consortium Created November, 1998
You may qualify for free legal assistance from your local legal aid program.
