Topics on this page
- Standby guardianship generally
- Designation of guardian
- When does the guardianship take effect?
- Court appointment of guardian
- Terminating guardianship
Standby Guardianship Generally
A standby guardian is a person appointed by a parent of a child to take care of the child in the event that the parent becomes:
- Deceased or incapacitated
- Debilitated by an illness or injury
- Subject to an adverse immigration action
Guardianship does not constitute custody. The parents must consent to the appointment. Either parent may revoke their consent to the guardianship at any time. Parents do not lose their parental rights at any time.
Read the Law: Md. Code, Estates & Trusts § 13–901-908
Designation of Standby Guardian
Parents can designate a standby guardian before the guardian is needed. A standby guardianship can be accomplished by parental designation where both parents sign a document, in the presence of two witnesses, which announces their intention to appoint the standby guardian. The standby guardian must also sign the document. The document must include the following information:
- Identity of the parents, the minor, and the standby guardian
- State the duties of the standby guardian
- Indicate that the parents intend the standby guardian to become the minor’s guardian if necessary
There is no requirement that the parents be imminently incapacitated. A suggested form for creating a parental designation can be found in the law controlling the process.
Read the Law: Md. Code, Estates & Trusts § 13-904
When Does the Guardianship Take Effect and What Steps Must the Guardian Take?
The guardianship takes effect upon the mental incapacitation, physical debilitation, or start of an adverse immigration action against the parent. The following defines these terms and explains what the standby guardian must do.
Read the Law: Md. Code, Estates & Trusts § 13-904
Mentally Incapacitated
Mental incapacitation means that a doctor has determined that the parent is mentally unable to care for the child. The guardianship will take effect as soon as the standby guardian receives written documentation, from a doctor, that the parent is unable to care for their child.
The standby guardian has 180 days to petition the court for a judicial appointment. If the standby guardian does not petition the court, the guardianship will terminate after the 180 days has passed.
The standby guardian must file the following documents with the court along with the petition:
- The parental designation signed by the parents and the standby guardian
- The consent form of the other parent (if applicable)
- Doctor's written determination of mental incapacitation
- Child’s birth certificate
Physical Debilitation
Physical debilitation means that a doctor has determined that the parent can no longer physically care for the child. The guardianship will begin when the standby guardian has the following 3 documents:
- Parental consent to the beginning of the standby guardianship signed by the parent, the standby guardian, and 2 witnesses
- Written documentation from the doctor that the parent is physically debilitated
- Child's birth certificate
Once the standby guardian receives these 3 documents, the guardianship will have begun. The standby guardian has 180 days to petition the court for a judicial appointment. If the standby guardian does not petition the court, the guardianship will terminate after the 180 days has passed. The standby guardian must file the following documents with the court along with the petition:
- The parental designation signed by the parents and the guardian
- Parental consent to the beginning of the standby guardianship
- Doctor’s written determination of physical debilitation
- Child’s birth certificate
Adverse Immigration Action
The standby guardianship will take effect if a parent is subject to an adverse immigration action. The law defines an adverse immigration action to include:
- Arrest or for an alleged violation of federal immigration law
- Detention by the Department of Homeland Security (or any agency acting on behalf of Homeland Security)
- Voluntary or involuntary departure from the United States under an order by the Immigration Court
- Revocation of a visa by the Department of State
- Denial of readmission by Homeland Security
- Denial of admission by Homeland Security
The standby guardian has 180 days to petition the court for a judicial appointment. If the standby guardian does not petition the court, the guardianship will terminate after the 180 days has passed. The standby guardian must file the following documents with the court along with the petition:
- The parental designation signed by the parents and the guardian
- Parental consent to the beginning of the standby guardianship
- Evidence of the adverse immigration action against the parent
- Child’s birth certificate
Parental Consent
If only one parent is incapacitated, debilitated, or subject to an adverse immigration action, the standby guardian must attempt to locate the other parent at the time of the petition. That parent must either sign a document agreeing to the guardianship or agree in court to the guardianship. If the standby guardian is unable to locate the other parent of the child, they must give the court proof of reasonable efforts to locate the other parent. If the court is satisfied that reasonable efforts were made to locate the other parent, the court may proceed without the other parent’s approval.
In the case of an adverse immigration action, if a parent resides outside the United States, the standby guardian may file the petition without the consent of the parent living outside the United States.
The Court Can Appoint a Standby Guardian if Necessary
The court can also appoint a standby guardian if a parent demonstrates that there is a significant risk that they will either become incapacitated or dying within 2 years of the petition. If this is the case the court may appoint the standby guardian.
For a judicial appointment to be made, consent of both parents is necessary. If there is only one parent petitioning, proof must be shown that reasonable efforts have been made to locate the other parent, the other parent is dead, or that the other parents consents to the guardianship either through testimony at court or by a signed consent form.
Read the Law: Md. Code, Estates & Trusts § 13-903
Terminating the Guardianship
If parents executed a parental designation form to create the standby guardian, and the guardianship has not yet taken effect, a parent can revoke the designation by notifying the standby guardian verbally or in writing of their intent to revoke the guardianship.
A parent can terminate a guardianship that has taken effect, or one that has been judicially appointed, by proving a written notice that the guardianship is revoked, filing that with the court and notifying the guardian.
Read the Law: Md. Code, Estates & Trusts § 13-903 and 904