Standby Guardianships

Standby Guardianship Act

A Standby Guardianship Act took effect July 1, 2002. This act allows custodial parents to sign a document designating a standby guardian for their child or children in the event the parent(s) become incapacitated. The guardianship is not activated until a health care professional certifies that the parent or parents have actually become incapacitated. At that point, a notice of the Standby Guardianship must be filed in Probate Court, along with a copy of the designation and the health care certificate.

The act authorizes a parent or legal guardian of a minor child to sign a document designating another person to act as a standby guardian for the minor in the event the parent or legal guardian, due to his or her mental or physical condition, becomes unable to care for the minor. The act sets out a form for use in Designation of the Standby Guardian (PDF). Any other document used to name a standby guardian must contain the same information and be in substantially the same format.

Notice of Standby

Probate Court is not involved in the signing stage. If and when a physician or licensed nurse practitioner makes a written determination that a parent or legal guardian who signed such a designation has in fact become unable to care for the minor by virtue of a physical or mental condition, the standby guardianship is activated.

At that point the standby guardian is required to file a Notice of Standby Guardianship (PDF), along with a copy of the Designation of Standby Guardian and a copy of the Health Care Determination, in the Probate Court of the county of residence of the minor. The Probate Court files and records the notice and attached copies, but takes no further action unless subsequent proceedings are later filed as described in the next paragraph.

Expiration & Further Action

The standby guardianship automatically expires 4 months from date of the health care determination unless the standby guardian files a petition seeking guardianship of the minor. This would probably most often be a petition seeking temporary guardianship. It would be filed in the court in which the notice was filed. The standby guardian has priority of appointment in the later guardianship proceeding.