Connecticut

A simple affidavit by the standby guardian that a specified triggering event has occurred is enough to commence the guardianship. [Probate 45a-624c] The events that would activate the guardianship are not limited to those listed in the statute: mental incapacity, physical debilitation, or death. [Probate 45a-624] That might leave room to add consent, or any other event. There is no requirement that the parent be terminally ill, or ill at all. However, it is clear that lawmakers thought a parent would only choose this process if death were close. For example, the standby guardianship only lasts for 1 year, or until the contingency is over, whichever is shorter [Probate 45a-624d], unless it is in effect at the time of the
parent's death.

The parent can revoke the authority at any time, in writing. [Probate 45a-624f].




II. Agreement of the Non-Custodial Parent

It is in finding and securing agreement of the non-custodial parent to the guardianship that the greatest barrier is raised. Connecticut imposes an absolute requirement that both parents consent to the guardianship unless "either parent has been removed as guardian" or had their parental rights terminated. [Probate 45a-624a] The statute does not explain the phrase "removed as guardian," nor does it impose notice or evidence requirements. It just states that the both parents must agree. However, elsewhere in the Probate Code there is a procedure for "removal of parent as guardian." [Probate 45a-609] Such a hearing would require proof of parental unfitness. It would be a complex undertaking for a single parent who is not well—but it does provide a way to proceed with the standby guardianship when the noncustodial parent cannot be found or does not agree.




III. Role of the Standby Guardian

The standby guardian is to have "care and control" of the child and "authority to make major decisions" affecting the child's welfare. [Probate 45a-604(5)] The concept of concurrent authority with the parent is not raised in this law. It appears that either the guardian or the parent has authority. Disputes over interpretation of the law may be referred to Probate Court. [Probate 45a-624g] The authority begins when the triggering event occurs and ends when the event is over, or after 1 year, whichever is shorter. [Probate 45a-624d] It would no doubt fall to the standby guardian to file the affidavit that the triggering event has occurred. [Probate 45a-624c] Also, if the parent dies, the standby guardian has 90 days within which to file a petition asking the court to appoint a permanent guardian. [45a-624c]




IV. Court Process

The initial filing can be as simple as the parent or guardian submitting the statute's suggested one paragraph attested form to the court. The standby guardian statute carries no provision for a court hearing at that initial period. When the specified contingency occurs, the standby guardian files an affidavit. Again, no court hearing requirement is stated.
Note, however, that the standby guardian is a guardian of the minor, and all provisions for such guardians are construed in the best interests of the child. [Probate 45a-605] This implies judicial discretion to call a hearing, probably based on in-chambers review of documents, or request of parties. (Reference to another section of the probate code entitled Appointment of Guardian or Coguardian For Minor; Rights Same As Sole Surviving Parent [Probate 45a-616] gives clues as to potential court hearings. This provision also covers guardianships where mental incapacity, physical debilitation, or death of the parent are contingencies that commence guardianship. It states that upon receipt of the affidavit that the
contingency has occurred, "the court may hold a hearing to verify the occurrence.") [Probate 45a-616(b)]

In any hearing, "best interests of the child" is the standard. Counsel may be appointed for the child. [Probate 45a-620] Any child 12 or older receives notice of the hearing. [45a-609(b)] The court's inquiring into the fitness of the guardian will include [Probate 45a-617]:

• ability of person to meet child's daily needs
  
• the child's preference (if child is of sufficient maturity to express that)
  
• the relationship between the child and the adult
  
• the child's best interests.

There is no discussion of the weight that the court would accord the parent's designation. Witnesses,
evidence, and presence of either parent would evidently be determined according to the usual civil
procedures in probate court.

		Connecticut General Statutes Annotated Title 45 A. Probate Courts and Procedure Chapter 802 H Protected Persons and their Property Part II. Guardians of the Person of Minor. Probate Code sec. 45a-624(a)–(g); -604(5); -605; -609; -616–-620.

Resources