Standby Guardianship - Pennsylvania

Who Can Nominate a Standby Guardian

Citation: Cons. Stat. Tit. 23, § 5611

A custodial parent, legal custodian, or legal guardian may designate a standby guardian.

How to Establish a Standby Guardian

Citation: Cons. Stat. Tit. 23, §§ 5611; 5612

A standby guardian may be designated by a written designation that:

• Identifies the person making the designation, the minor or minors, any other parent, the standby guardian, and the triggering event or events that will commence the guardianship
• Has been signed by the designating person in the presence of two witnesses who are 18 years of age or older and not otherwise named in the designation, who shall also sign the designation

Different standby guardians may be designated for different triggering events.

A petition for court approval of a designation may be made at any time. If the triggering event has not yet occurred, only the designator may file the petition. If the triggering event has occurred already, the standby guardian may file the petition.

A designation may be approved without a court hearing if there is only one parent.

How Standby Authority is Activated

Citation: Cons. Stat. Tit. 23, §§ 5612; 5613

The standby guardian shall have authority to act as guardian upon the occurrence of a triggering event, including the parent's death, incapacity, physical debilitation with consent, or written consent alone.

If a designation has been made but the petition for approval of the designation has not been filed and a triggering event has occurred, the standby guardian shall have temporary legal authority to act as guardian of the minor without the direction of the court for a period of 60 days. The standby guardian shall within that period file a petition for approval in accordance with § 5612.

The petition of the standby guardian shall contain one of the following:

• A determination of the designator's incapacity
• A determination of the designator's debilitation
• The designator's signed and dated consent
• A copy of the designator's death certificate

If no petition is filed within the 60 days, the standby guardian shall lose all authority to act. If a petition has been filed but the court does not act upon it within the 60-day period, the temporary legal authority to act as guardian shall continue until the court orders otherwise.

Involvement of the Noncustodial Parent

Citation: Cons. Stat. Tit. 23, § 5611

Consent of the other parent is required when the parent's whereabouts are known, his or her parental rights have not been terminated, and the parent is willing and able to care for the child.

Authority Relationship of the Parent and the Standby

Citation: Cons. Stat. Tit. 23, § 5613

The commencement of the standby guardian's authority to act due to incapacity, debilitation and consent, or consent alone shall not itself divest the designator of any parental rights but shall confer upon the standby guardian concurrent or shared custody of the child.

The commencement of the standby guardian's authority to act as guardian due to the death of the designator shall not confer upon the standby guardian more than physical and legal custody.

A standby guardian shall ensure frequent and continuing contact with the child and ensure the involvement of the parent, including, to the greatest extent possible, in decision-making on behalf of the child.

Withdrawing Guardianship

Citation: Cons. Stat. Tit. 23, §§ 5613; 5614

If a licensed physician determines that the designator has regained capacity, the standby guardian's authority that commenced on the occurrence of a triggering event shall become inactive, and the standby guardian shall return to having no authority.

Prior to a petition being filed, the designator may revoke a standby guardianship by simple destruction of the designation and notification of the revocation to the standby guardian. After a petition has been filed, the designator may revoke a standby guardianship by:

• Executing a written revocation
• Filing the revocation with the court
• Notifying the persons named in the designation of the revocation in writing

Regardless of whether a petition has been filed, an unwritten revocation may be considered by the court if it can be proven by clear and convincing evidence.