Standby Guardianship - Massachusetts

Who Can Nominate a Standby Guardian

Citation: Ann. Laws Ch. 190B, § 5-202

A parent may appoint a guardian for any minor child the parent has or may have in the future. A guardian may appoint a guardian for any minor child for whom the guardian serves.

How to Establish a Standby Guardian

Citation: Ann. Laws Ch. 190B, §§ 5-202; 5-203

A parent or guardian, by will or other writing signed by the parent or guardian and attested by at least two witnesses, may appoint a guardian for his or her minor child, may revoke or amend the appointment, and may specify any desired limitations on the powers to be granted to the guardian.

Upon petition of an appointing parent or guardian, upon finding that the appointing parent or guardian will likely become unable to care for the minor within 2 years or less, and after notice as provided in § 5-206(b), the court, before the appointment becomes effective, may confirm the parent's or guardian's selection of a guardian and terminate the rights of others under § 5-203.

The minor child age 14 or older who is the subject of a parental appointment may prevent the appointment or cause it to terminate by filing in the court in which the appointing instrument is filed a written objection to the appointment before it is accepted or within 30 days after receiving notice of its acceptance.

How Standby Authority is Activated

Citation: Ann. Laws Ch. 190B, § 5-202

The appointment of a guardian becomes effective on the first of the following to occur:

• The appointing parent's or guardian's death
• An adjudication that the parent or guardian is an incapacitated person
• A written determination by a physician who has examined the parent or guardian that the parent or guardian is no longer able to care for the minor unless the minor is in the care or custody of a person other than a parent

Within 30 days after the appointment becomes effective, a guardian shall:

• File a notice of acceptance of appointment and a copy of the will or other nominating instrument with the court of the county in which the will was or could be probated or, in the case of another nominating instrument, with the court of the county in which the minor resides
• Unless the appointment was previously confirmed by the court, petition the court for confirmation of the appointment

Involvement of the Noncustodial Parent

Citation: Ann. Laws Ch. 190B, § 5-203

The child's other parent, if that parent's parental rights have not been terminated, may prevent the appointment or cause it to terminate by filing a written objection to the appointment in the court in which the appointing instrument is filed before it is accepted or within 30 days after receiving notice of its acceptance.

Authority Relationship of the Parent and the Standby

Citation: Ann. Laws Ch. 190B, § 5-202

The parental appointment of a guardian shall not supersede the parental rights of either parent. If both parents are dead or have been adjudged incapacitated persons, an appointment by the last parent who dies or was adjudged incapacitated has priority.

Withdrawing Guardianship

Citation: Ann. Laws Ch. 190B, § 5-202

The authority of a guardian appointed under this section terminates upon the first to occur of the appointment of a guardian by the court, the revocation of the appointment by the appointing parent or guardian, or the filing of an objection pursuant to § 5-203.