Standby Guardianship - West Virginia

Date: June 2018

Who Can Nominate a Standby Guardian

Citation: Ann. Code §§ 44A-5-2; 44A-5-3

A parent, functional parent, or any person acting on a parent's behalf may petition for a standby guardian for a child of a qualified parent. 'Qualified parent' means a parent who has been diagnosed by a licensed physician to be afflicted with a progressive or chronic condition caused by injury, disease, or illness from which, to a reasonable degree of medical probability, the patient cannot recover and that is likely to lead to debilitation or incompetence.

How to Establish a Standby Guardian

Citation: Ann. Code §§ 44A-5-3; 44A-5-4; 44A-5-5

Upon petition, the court may approve a person as standby guardian for a child of a qualified parent upon the occurrence of a specific triggering event. The petition shall include the following:

  • The name and address of the petitioner and his or her relationship to the child, the name and address of the child's qualified parent, and the name and address of any other parent of the child whose identity and whereabouts are known
  • The name, address, and birth date of the child
  • The proposed triggering event
  • Whether a determination of incompetence or debilitation has been made
  • Whether there is a significant risk that the qualified parent will die imminently, become physically or mentally incapable of caring for the child, or die as a result of a progressive chronic condition or illness
  • The name and address of the proposed standby guardian
  • Any known reasons why the child's other parent is not assuming or should not assume the responsibilities of a standby guardian

When a petition is filed by a person other than a parent having custody of the child, the standby guardian shall be appointed only with the consent of the qualified parent, unless the court finds that such consent cannot be given for medical reasons.

A parent may execute a written designation of a standby guardian at any time. The written designation shall be signed by the parent and witnessed by two adults.

Children who are age 14 or older must be notified of any hearing.

How Standby Authority is Activated

Citation: Ann. Code §§ 44A-5-4; 44A-5-5; 44A-5-6

The authority of the standby guardian is effective:

  • Upon receipt by the standby guardian of a determination of incompetence or a certificate of death
  • If so requested in the petition, upon receipt by the standby guardian of a written consent of the qualified parent and filing of the consent with the court

A court-approved standby guardian then has 30 days to file confirming documents with the court. A standby guardian by written designation must petition the court for approval as soon as possible but no later than 30 days after the triggering event.

If the parent has died, the standby guardian has 90 days to petition for the appointment of a permanent guardian or initiate proceedings to determine custody of the child.

Involvement of the Noncustodial Parent

Citation: Ann. Code § 44A-5-3

Each parent whose identity and whereabouts are known must receive notice and a copy of the petition; he or she has 10 days to request a hearing. The court cannot proceed if a custody case is pending.

Authority Relationship of the Parent and the Standby

Citation: Ann. Code §§ 44A-5-2; 44A-5-7

The standby guardian temporarily assumes the duties of guardian of the child on behalf of or in conjunction with a qualified parent upon the occurrence of a triggering event. This enables the parent to plan for the future of the child without terminating parental or legal rights. It creates coguardianship rights between a parent and the standby guardian, giving the standby guardian authority to act in a manner consistent with the known wishes of a qualified parent regarding the care, custody, and support of the child.

When a standby guardian's authority is effective due to debilitation or incompetence of the parent, the standby guardian's authority to act on behalf of the parent continues even when the parent is restored to health unless the parent notifies the guardian and, if appropriate, the court, in writing.

Withdrawing Guardianship

Citation: Ann. Code § 44A-5-7

The authority of a standby guardian who has been approved by the court may be revoked by the parent by filing a notice of revocation with the court.

At any time following his or her approval by the court, a standby guardian may decline to serve by filing a written statement of refusal with the court and having the statement personally served on the parent.

When a written designation has been executed but is not yet effective because the triggering event has not yet occurred, the parent may revoke or the prospective standby guardian may refuse the designation by notifying the other party in writing.

A written designation may also be revoked by the execution of a subsequent inconsistent designation.

Related Resources