Standby Guardianship - District of Columbia

Date: June 2018

Who Can Nominate a Standby Guardian

Citation: Ann. Code § 16-4802

A custodial parent, including a person other than a parent who has been awarded custody or guardianship of the child by a court, may be a designator of a standby guardian when he or she has been diagnosed with a chronic condition caused by injury, disease, or illness from which, to a reasonable degree of probability, the designator may not recover.

How to Establish a Standby Guardian

Citation: Ann. Code §§ 16-4803; 16-4807

A designator may designate a standby guardian at any time. The designation shall be in writing and signed and dated by the designator or the designator's proxy in the presence of two witnesses who shall be over age 18 and who cannot be the standby guardian.

The standby guardian shall sign the executed designation to indicate acceptance of the standby guardianship. A petition must be filed with the court to approve the designation.

How Standby Authority is Activated

Citation: Ann. Code §§ 16-4802; 16-4805; 16-4806; 16-4807

The standby guardian's authority becomes effective upon the occurrence of a triggering event, which includes the following:

  • The designator's written acknowledgment of debilitation and consent to commencement of the standby guardianship
  • The designator's incapacity as determined by an attending clinician
  • The designator's death

If the petition filed by the designator pursuant to § 16-4805 is approved by the court before the occurrence of the triggering event, the standby guardian's authority will commence automatically upon the occurrence of the triggering event. No further petition or confirmation is necessary.

If the petition for approval of the designation has not been filed before the occurrence of a triggering event, the standby guardian shall have temporary legal authority to act as legal custodian or guardian of the child without authorization of the court for a period of 90 days from the date of the triggering event. Within that 90-day period, the standby guardian shall file a petition for approval of the standby guardianship in accordance with § 16-4805.

Involvement of the Noncustodial Parent

Citation: Ann. Code § 16-4806

The court shall presume that approval of a standby guardian petition order is in the best interests of the child if:

  • The designator is the sole surviving parent.
  • The parental rights of any noncustodial parent have been terminated or relinquished.
  • All parties consent to the designation.

An order approving the standby guardianship shall not be entered without a hearing if:

  • A noncustodial parent requests a hearing within 20 days of the date the noncustodial parent receives notice of the filing of the petition.
  • There is other litigation pending regarding custody of the child.

Authority Relationship of the Parent and the Standby

Citation: Ann. Code § 16-4804

Upon the occurrence of a triggering event, the standby guardian shall have authority to act and shall assume the rights, powers, duties, and obligations existing under law between a legal custodian and a child. The designator shall retain concurrent authority over the child as the designator's health permits.

If a clinician determines that the designator is no longer incapacitated, or the designator withdraws the consent that acknowledged debilitation, the standby guardian shall no longer have authority to act as the child's legal custodian.

The designation of a standby guardian does not extinguish or limit any rights, powers, duties, or obligations of the parent, legal custodian, or legal guardian, or the rights of any other individual with parental or custodial rights existing at the time of the designation. The standby guardianship shall be construed to enable the designator to plan for the future care of a child without terminating parental or legal rights and to give the standby guardian the authority to act in a manner consistent with the known wishes of the designator regarding the care, custody, and support of the minor child. A standby guardian shall assure the designator frequent and continuing contact with and physical access to the child and, to the greatest extent possible, the involvement of the designator in decision-making on behalf of the child.

Withdrawing Guardianship

Citation: Ann. Code § 16-4810

The authority of the standby guardian may be revoked by the designator by filing a notice of revocation with the court.

An executed designation that has not been activated because a triggering event has not occurred or a petition has not been filed may be revoked by the designator or declined by the prospective standby guardian by notifying the other party in writing. A designation may also be revoked by the execution of a subsequent inconsistent designation.

Failure of the standby guardian to file a certificate of death within 90 days of a designator's death shall be grounds for the court to rescind the authority of the standby guardian.

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