Standby Guardianship - Delaware

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Who Can Nominate a Standby Guardian

Citation: Ann. Code Tit. 13, § 2365

Any parent, custodian, or guardian may petition the family court for a standby guardianship order regarding a child for whom they have been given legal responsibility.

How to Establish a Standby Guardian

Citation: Ann. Code Tit. 13, §§ 2363; 2367(c)-(d)

A petition for standby guardianship may be filed in the family court of any of the following counties:

  • The county in which one natural parent resides
  • The county in which a legal guardian of the child resides
  • The county in which one child resides

The court must find, prior to the granting of an order for standby guardianship, that there is a significant risk that the parent, legal custodian, or guardian will die, become incapacitated, or become debilitated as a result of a chronic condition or terminal illness within 2 years of the filing of the petition, as certified by an attending physician.

If an order for standby guardianship is granted, the order shall determine the triggering event for the standby guardianship by specifying whether:

  • The authority of the standby guardian is effective on the receipt of a determination of the petitioner's incapacity or debilitation, or on the receipt of the certificate of the petitioner's death.
  • The authority of the standby guardian may become effective earlier on written consent of the petitioner.

How Standby Authority is Activated

Citation: Ann. Code Tit. 13, § 2368(a)-(d)

Upon the occurrence of a triggering event set forth in an order appointing a standby guardian, the appointed standby guardian shall be empowered to assume the standby guardian duties immediately.

If the triggering event is the incapacity or debilitation of the parent, legal custodian, or guardian, the attending physician shall provide a copy of that physician's determination to the appointed standby guardian if the guardian's identity is known to the attending physician.

Within 30 days following the assumption of guardianship duties, the standby guardian shall petition the court for confirmation. The confirmation petition shall include a determination of incapacity or debilitation or a death certificate, as appropriate. Absent a judicial finding or determination of unfitness, the standby guardian's power and authority shall commence immediately upon the occurrence of the triggering event and shall continue unimpeded until the court may hear the standby guardian's petition for confirmation.

The court shall confirm an appointed standby guardian previously named and otherwise qualified to serve as guardian unless there is a judicial determination of unfitness with regard to the appointed standby guardian.

Involvement of the Noncustodial Parent

Citation: Ann. Code Tit. 13, § 2367(a)-(b)

When the parent is the person suffering from a progressive chronic condition or terminal illness, prior to granting an order for standby guardianship, the court shall find that the standby guardianship is in the child's best interests, and:

  • The child would be dependent, neglected, or abused in the care of the other parent.
  • The other parent of the child is deceased.
  • The other parent's parental rights have been terminated.
  • The other parent consents to the appointment of a standby guardian.

When the legal custodian or guardian is the person suffering from a progressive chronic condition or terminal illness, prior to granting an order for standby guardianship, the court shall find that the standby guardianship is in the child's best interests, and as to each parent:

  • The child remains dependent, neglected, or abused in the parent's care.
  • The parent of the child is deceased.
  • The parent's parental rights have been terminated.
  • The parent consents to the appointment of a standby guardian.

Authority Relationship of the Parent and the Standby

Citation: Ann. Code Tit. 13, §§ 2361; 2368(f)

A standby guardianship enables a parent, custodian, or guardian suffering from a progressive chronic condition or a terminal illness to make plans for the permanent future care or the interim care of a child without terminating parental or legal rights.

When the duties of the standby guardian begin, the appointed standby guardian will share authority with the parent, legal custodian, or guardian of the minor child unless the petition states otherwise.

Withdrawing Guardianship

Citation: Ann. Code Tit. 13, § 2368(e), (g), (h)

A standby guardian may decline the appointment at any time before the assumption of that standby guardian's duties by filing a written statement to that effect with the court, with notice to be provided to the petitioner and to the minor child if the latter is age 14 or older.

A parent, legal custodian, or guardian may revoke a standby guardianship by executing a written revocation, filing it with the court where the petition was filed, and promptly notifying the appointed standby guardian of the revocation.

A person who is judicially appointed as a standby guardian may renounce the appointment at any time by:

  • Executing a written renunciation
  • Filing the renunciation with the court
  • Promptly notifying in writing the parent, legal custodian, or legal guardian of the renunciation