Peace of Mind on Vacation – The Standby Guardianship Act
The daily grind of our business lives causes some of us to look forward to summer vacations with unadulterated joy, especially vacations without the kids. As we plan to embark on these trips, it is not paranoiac, but rather prudent, that we take time to reflect on our estate plans and what might happen, Heaven forbid, if suddenly we are not able to care for our children.
You may know that you can designate a guardian in your Will to care for both the person and the estate of your children if you should pass away. This person is called a testamentary guardian. However, did you also know that Pennsylvania law allows you to designate a standby guardian if you should encounter some unforeseen circumstance other than death? This law, found at 23 Pa.C.S.A. § 5601 et seq. , is appropriately entitled the Standby Guardianship Act.
The Standby Guardianship Act, in a nutshell, sets out a process by which a parent or guardian can designate a standby guardian for his or her children upon the occurrence of a triggering event. The law does not define a “triggering event” other than as a “specified occurrence stated in the designation which empowers a standby guardian to assume the powers, duties and responsibilities of guardian or co-guardian.” 23 Pa.C.S.A. § 5602. Thus, a triggering event might be “my death,” “my incapacity,” or “my absence from Pennsylvania for more than two weeks.” The law generally assumes, however, that parents will use the power to designate a standby guardian when the parents are themselves unable to care for their children. This law is not intended as a vehicle by which a child can be forced onto another, and it is clear that the commencement of a standby guardian’s authority cannot by itself divest a parent of any parental rights or obligations. 23 Pa.C.S.A. § 5613(c).
The general rule is that a custodial parent, a legal custodian or legal guardian may designate a standby guardian for a minor by using a written designation unless the minor has another parent or adoptive parent (1) whose parental rights have not been terminated or relinquished; (2) whose whereabouts are known; and (3) who is willing and able to make and carry out the day-to-day child-care decisions concerning the minor. 23 Pa.C.S.A. § 5611(a). In other words, this law cannot be used by one parent to circumvent the legal rights of the other parent even if, for instance, the parent with primary physical custody of the children wants to designate a standby guardian other than the non-custodial parent. If both parents consent, however, they can together designate a standby guardian. 23 Pa.C.S.A. § 5611(b). The designation must signed by the designating parent, legal custodian or legal guardian in the presence of two witnesses who are 18 years of age or older and not otherwise named in the designation, who must also sign the designation. 23 Pa.C.S.A. § 5611(c)(2).
Once the triggering event occurs, the standby guardian has the authority to act as guardian for the children for sixty (60) days and must, within that time, file a petition with the court to have the guardianship confirmed if the guardianship is to continue. 23 Pa.C.S.A. § 5613. However, the standby guardian can be “preapproved,” so to speak, if the parent or guardian petitions the court, even before the triggering event, so that upon the occurrence of the event the standby guardian does not again have to petition the court in order for his or her authority to last beyond sixty days. 23 Pa.C.S.A. § 5613.
The law also provides a mechanism to automatically take away the powers of a standby guardian if the parent who made the designation regains his or her capacity. 23 Pa.C.S.A. § 5613(d). Additionally, the designator can revoke the standby guardianship either before or after the standby guardian files a petition to have the guardianship confirmed. 23 Pa.C.S.A. § 5614.
The Standby Guardianship Act is a powerful and useful tool in the arsenal of estate planning attorneys. It allows for the quick, relatively easy transition of authority from a parent to a guardian if the parent becomes unable to care for his or her child. Many people rush to their lawyers to have estate planning documents prepared just before going on summer vacation, so that they can have some peace of mind when they leave. All too often thoughtful estate planning is put off until the last minute. Like Wills, Powers of Attorney, and Living Wills, a Standby Guardianship designation can provide that peace of mind which will let you really enjoy that vacation.
If you require legal representation for an custody or guardianship matter, or would like to discuss Wills, Powers of Attorney, Guardianships or general Estate Planning, the attorneys of Wolf, Baldwin & Associates, P.C. have the experience to represent you. Click here now to contact us and to schedule an appointment. We will be happy to advise you about all matters of Estate Planning under Pennsylvania law.