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Standby Guardianship provides a way for parents and caregivers
who have a chronic or terminal illness to arrange a stable,
nurturing guardianship for their children that will take effect
if the parent or caregiver cannnot care for them. Standby
Guardianship laws have been passed in at least 22 states and
the District of Columbia, primarily as a response to the number
of parents who are infected by HIV and desire to make plans
for their children, but do not want to transfer decision-making
power before they are incapacitated.
In June 2002, the District of Columbia City Council passed
the Standby Guardianship Act of 2002, allowing chronically
ill parents or legal custodians to make future care arrangements
for their children. D.C. Code §16-4801 et seq.
Unlike custody actions, where legal custody is transferred
to another person when the court issues the Custody Order,
Standby Guardianship laws allow parents to name a trusted
person to "standby" or "step into the shoes"
of the parent when a triggering event such as incapacity or
death occurs. The standard for granting standby guardianship
is the best interest of the child, as with any other custody
action.
Securing a standby guardian is a two-step process. First,
the parent/caregiver nominates a suitable guardian in a document
(referred to as a "designation")
that is witnessed by two people. The designation does not
have to be filed in court to be legally effective as a first
step toward standby guardianship.
The standby guardianship only becomes active after a "triggering
event" occurs. Trigger events include: 1) when
the parent/caregiver signs a statement of debilitation; 2)
an attending clinician (a doctor or nurse practitioner who
has cared for the parent/caregiver) indicates incapacity;
3) or the parent/caregiver dies. This designation may be revoked
at any time by the parent/caregiver.
To complete the process, the parent/caregiver may file a petition
with the D.C. Superior Court asking it to award the Standby
Guardianship. This is done prior to a triggering event. If
the parent/caregiver has not filed a petition prior to the
triggering event, then the standby guardian named in the designation
has 90 days to file a petition after the trigger event to
initiate the court process to grant the standby guardianship.
A designation can be executed without the assistance of an
attorney, although this is recommended. It is also recommended
that an attorney provide assistance with the writing and filing
of a petition for Standby Guardianship.
Further information on the designation
and petition, as well as sample
documents, is presented on other pages in this section.
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