Standby Guardianship - California

Who Can Nominate a Standby Guardian

Citation: Prob. Code § 2105

A custodial parent who has been diagnosed as having a terminal condition, as confirmed by a licensed physician, may nominate a standby guardian.

How to Establish a Standby Guardian

Citation: Prob. Code § 1502

A nomination of a guardian may be made:

• In the petition for the appointment of the guardian or at the hearing on the petition
• In a writing signed either before or after the petition for the appointment of the guardian is filed

How Standby Authority is Activated

Citation: Prob. Code §§ 2105; 1502

The court may appoint the custodial parent and a person nominated by the custodial parent as joint guardians of the child.

The nomination of a guardian becomes effective when made or upon the occurrence of the specified condition or conditions that are stated in the writing, including the subsequent legal incapacity or death of the person making the nomination.

Involvement of the Noncustodial Parent

Citation: Prob. Code §§ 1500; 2105

Subject to § 1502, a parent may nominate a guardian of the person or estate, or both, of a minor child in either of the following cases:

• The other parent nominates, or consents in writing to the nomination of, the same guardian for the same child.
• At the time the petition for appointment of the guardian is filed, either the other parent is dead or lacks legal capacity to consent to the nomination, or the consent of the other parent would not be required for an adoption of the child.

The appointment of a joint or standby guardian shall not be made over the objections of a noncustodial parent unless it is found that the noncustodial parent's custody would be detrimental to the minor, as provided in § 3041 of the Family Code.

Authority Relationship of the Parent and the Standby

Citation: Prob. Code § 2105

The custodial parent and standby guardian will share in the care, custody, and control of the child.

It is the intent of the Legislature for a parent with a terminal condition to be able to make arrangements for the joint care, custody, and control of his or her minor children to minimize the emotional stress of, and disruption for, the minor children when the parent is incapacitated or upon the parent's death, and to avoid the need to provide a temporary guardian or place the minor children in foster care, pending appointment of a guardian, as might otherwise be required.

Withdrawing Guardianship

Citation: Prob. Code § 1502

Unless the writing making the nomination expressly provides otherwise, a nomination made under this article remains effective notwithstanding the subsequent legal incapacity or death of the person making the nomination.