Standby Guardianship - New York

Who Can Nominate a Standby Guardian

Citation: Surrogate's Crt. Proc. Act § 1726

A parent, legal guardian, or legal custodian may petition for the appointment of a standby guardian. The child's primary caretaker may petition when the parent, guardian, or custodian cannot be located.

How to Establish a Standby Guardian

Citation: Surrogate's Crt. Proc. Act §§ 1726; 1706

The petition must state the following:

• Whether the authority of the standby guardian is to become effective upon the petitioner's incapacity, death, or consent, whichever occurs first
• That the petitioner suffers from either a progressively chronic illness or an irreversibly fatal illness, and the basis for such statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question

If the court finds that the petitioner suffers from a progressively chronic illness or an irreversibly fatal illness and that the interests of the child will be promoted by the appointment of a standby guardian, it must make a decree accordingly.

A standby guardian may also be designated by a written designation, signed by the parent in the presence of two witnesses. An optional designation form is provided in the statute.

The court will consider the preference of a child who is age 14 or older. If the youth is older than age 18, he or she shall consent to the appointment of a suitable guardian.

How Standby Authority is Activated

Citation: Surrogate's Crt. Proc. Act § 1726

The standby guardian's authority commences upon receipt of a determination of the parent's incapacity, certificate of the parent's death, or the parent's written consent. An attending physician must document the parent's incapacity.

A guardian by judicial decree has 90 days to file confirming documents. A guardian by written designation has 60 days to file confirming documents and petition for appointment.

Involvement of the Noncustodial Parent

Citation: Surrogate's Crt. Proc. Act § 1705

Notice of hearing is required to any parent living in a known residence in New York, unless the parent has abandoned the child, is deprived of civil rights, divorced from the custodial parent, incompetent, or otherwise judicially deprived of custody of the child.

Authority Relationship of the Parent and the Standby

Citation: Surrogate's Crt. Proc. Act § 1726

The commencement of the standby guardian's authority due to incapacity, debilitation, or consent shall not divest the parent of any parental rights but shall confer upon the standby guardian concurrent authority with respect to the child.

Withdrawing Guardianship

Citation: Surrogate's Crt. Proc. Act § 1726

The petitioner may revoke a standby guardianship created by judicial appointment by executing a written revocation, filing it with the court that issued the decree and promptly notifying the standby guardian of the revocation.

A judicially appointed standby guardian may at any time before the commencement of his or her authority renounce the appointment by executing a written renunciation and filing it with the court that issued the decree, and promptly notifying the petitioner of the revocation.

The parent may revoke a standby guardianship created by written designation:

• By executing a subsequent designation of guardianship by petition to the court
• In the case of a standby guardian whose authority becomes effective upon the death of the parent, by a subsequent designation of standby guardian set forth in a will of the parent
• By notifying the standby guardian verbally or in writing or by any other act evidencing a specific intent to revoke the standby guardianship prior to the filing of a petition