Standby Guardianship - Minnesota

Date: June 2018

Who Can Nominate a Standby Guardian

Citation: Ann. Stat. §§ 257B.03; 257B.05

A parent with legal and physical custody or a legal custodian may designate a standby or temporary custodian.

If a triggering event has not occurred, only a custodian or legal guardian may file a petition with the court. If a triggering event has occurred, the standby guardian may file.

How to Establish a Standby Guardian

Citation: Ann. Stat. §§ 257B.04; 257B.05

The written designation must identify the designator; the children; the other parent, if any; the standby guardian; and the triggering events. It must include the signed consent of the standby guardian and the other parent, or a statement why the other parent's consent is not required.

The designation must be signed by the designator in the presence of two witnesses who are age 18 or older and not otherwise named in the designation. The witnesses must also sign the declaration.

Approval without a hearing is permitted if both parents consent to the designation, or there is only one surviving parent. A hearing is required in other cases. An optional designation form is provided in the statute.

How Standby Authority is Activated

Citation: Ann. Stat. § 257B.06

The standby custodian's authority commences upon a triggering event, such as a determination of incapacity or a determination of physical debilitation plus consent. If the petition is approved before the triggering event, no further court action is required.

If a designation has been made but not yet approved by the court, the standby custodian has 60 days from the triggering event to file confirming documents and petition for approval. If the parent dies, the standby custodian shall be appointed permanent guardian without additional petition.

Involvement of the Noncustodial Parent

Citation: Ann. Stat. § 257B.03

Consent to the designation is required unless the whereabouts of the parent are unknown, parental rights have been terminated, or the parent is unwilling and unable to care for the child.

Authority Relationship of the Parent and the Standby

Citation: Ann. Stat. § 257B.06

The commencement of the standby custodian's authority does not itself divest the designator of any parental rights but confers on the standby custodian concurrent or shared custody of the child.

The standby custodian shall ensure frequent and continuing contact with and physical access by the parent with the child and shall ensure the involvement of the parents, to the greatest extent possible, in decision-making on behalf of the child.

The standby custodian's authority becomes inactive upon the attending physician's written certification that the parent is restored to health.

Withdrawing Guardianship

Citation: Ann. Stat. § 257B.07

Before the petition has been filed with the court, the designator may revoke the appointment of a standby custodian by destroying the designation and notifying the standby custodian. After a petition has been filed, the designator must file a written revocation with the court and notify the standby custodian in writing.

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