Guardianships can be established for many different reasons. They can be created for the benefit of adults or minors. There is a special area of guardianship law referred to as “standby” or “pre-need” guardianship, which allows for the transfer of child custody under particular circumstances. Every state has its own position on this area of the law. Not all states recognize pre-need or standby guardianships. This article will discuss standby guardianship in California and how this tool can be incorporated into your estate plan, to guarantee the protection and care of your minor children, should something happen to you.
The definition of a standby guardianship
A standby guardianship, referred to as a pre-need guardianship in some states, is a way for parents to prepare for the future care of their minor children, in the face of impending death or incapacitation. The most common situation where this type of guardianship is allowed, the parent making the declaration or nomination of a guardian is chronically ill, or has been diagnosed with a terminal illness. Because this type of guardianship is only triggered by the parent’s death, mental incapacity, or physical debilitation, the chosen guardian is essentially on “standby” until that triggering event occurs. About 26 states have passed legislation creating this type of guardianship.
Am I required to nominate a guardian?
As is the case with any guardianship, the wisest course is to identify the person you want to serve as guardian, when you establish the standby guardianship. Too often, people assume their families would “do the right thing” when the situation arises. However, family conflict is usually the result if a parent fails to name the guardian ahead of time. More often than not, multiple family members believe that they are the best choice for the child, and a custody battle will begin.
Standby Guardianship in California
In California, as with most states that have a similar law, a standby guardianship is allowed when a custodial parent who is diagnosed with a terminal condition, as confirmed by a physician is eligible to nominate a standby guardian. That parent can nominate a guardian for his/her child.
Can a short-term or temporary guardian be appointed?
The appointment of a short-term guardian must be in writing, and it becomes effective immediately upon execution. The document must identify the appointed guardian and include the date on which the guardian is appointed, the name of the parent appointing the guardian, and the minor child for whom the guardian is appointed. The document must be signed by the parent and the guardian, in the presence of a notary public.
A short-term guardian typically serves for 6 months, unless the written document appointing the guardian specifies a shorter term. The document can also specify that the guardianship will terminate upon the occurrence of a particular event, which takes place sooner than 6 months. The appointment of a short-term guardian will not affect the rights of the non-custodial parent.
When is a standby guardianship not applicable?
A standby or short-term guardian is not allowed when there is another parent whose parental rights have not been terminated or whose whereabouts are known. If the other parent is willing and able to care for the minor, the rights of that parent must be considered before appointing a standby guardian.
If you have questions regarding standby guardianships, or any other incapacity planning needs, please contact the Schomer Law Group either online or by calling us at (310) 337-7696.
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