Massachusetts

I. Designation of Standby Guardian
II. Agreement of the Non-Custodial Parent
III. Role of the Standby Guardian
IV. Court Process
Resources and Links


I. Designation of Standby Guardian

A parent may designate in an attested document a standby guardian for her child (including children yet unborn). [Probate 201-2B] She is permitted to describe her plans for the child's future and proposed permanent custody arrangements. She can explain the extent to which she is willing and able to participate in daily child care decisions. [Probate 201-2C] Parents are thus encouraged to visualize and express plans for a stable future for their children.
The triggering events permitted to activate the standby guardianship are death, consent of the parent, or incapacity "to make and carry out day-to-day child care decisions" as certified by a physician. [Probate 201D]

A parent may revoke the designation in writing [Probate 201-2E] or withdraw its active status after it has commenced, either by withdrawing consent or establishing remission of the incapacitating condition. [Probate 201-2F]





II. Agreement of the Non-Custodial Parent

The standby guardian statute is silent on the necessity to secure the agreement of the non-custodial parent. By comparison, an accompanying statute in the same section of the code, referring to emergency guardianship that lasts for 60 days, is very explicit on that point. It says "A parent shall not appoint an emergency proxy of a minor, if the minor has another living parent whose parental rights have not been terminated, whose whereabouts are known, and who is willing and able to make and carry out day to day child care decisions concerning the minor, unless the nonappointing parent consents to the appointment by signing the written instrument of appointment" [Probate 201-2G] Clearly, a standby guardianship which can endure for a longer period of time and may evolve into a permanent arrangement would require the consent of the non-custodial parent. [See Adoption of Carlos, 576 NE 2d 701 (1991)] The usual exceptions would no doubt apply: proven unfitness, prior termination of parental rights, and perhaps inability to locate after diligent search. Elsewhere in the guardianship statute there is reference to the potential for the court to find a parent unfit [Probate 201-5] so it is possible that unfitness could be determined in the standby guardianship hearing.




III. Role of the Standby Guardian

Once the duties commenced after a triggering event, the standby guardian would exercise custody and care of the child concurrently with the parent. [Probate 201-2D]. Those powers may be modified either by the terms of the designation or by the court. [Probate 201-5] The law speaks of the standby guardian being more or less active depending on the health and ability of the parent. [Probate 201-2F]

The standby guardian's authority begins "immediately" upon occurrence of a triggering event. Within 90 days the standby guardian must to gather and file documents and a petition to enable the court to confirm the active status. That would include certification of a licensed physician, if the triggering event is incapacity. These must be accompanied by a petition for guardianship. [Probate 201-2D]. If the standby guardian becomes the permanent guardian, that relationship continues until the child reaches 18 years, unless the guardianship is revoked. [Probate 201-4]




IV. Court Process

The process begins with the filing of a petition to appoint a standby guardian. The petition, which lists the triggering events (required to be death, consent or incapacity) may be accompanied by the attested document designating the proposed guardian and an affidavit describing the parent's plan for the child. [Probate 201-2B, 2C]. The court then holds a hearing to determine whether the guardianship is in the child's best interests. [Probate 201-2] Notice of the hearing is sent to the parents, but if either is ill, their presence can be waived. [Probate 201-2C]

The court applies a "best interests of the child" standard. Custody cases under the Domestic Relations statute make clear that the trial court retains discretion to weigh any factors pertinent to the particular case in its decision. [e.g. R.H. v. B.F., 653 N.E.2d 195 (1995)]

After the appointment is made, the next court step typically is the standby guardian's filing of documents certifying a triggering event or condition. He does this within 90 days of the event, having been granted temporary authority for that length of time. These are to be accompanied by a petition to appoint a permanent guardian, very likely the standby guardian. [Probate 201-2D]

		Massachusetts General Laws Annotated Part II. Real and Personal Property and Domestic Relations Title II. Descent and Distribution, Wills, Estates of Deceased Persons and Absentees, Guardianship, Conservatorship and Trusts Chapter 201. Guardians and Conservators; Guardians of Minors Section 201-2B, -2C,-2D,-2F, -2G, -2, -4, -5.

Source: Standby Guardian Laws. A Guide for Legislators, Lawyers, and Child Welfare Professionals, The American Bar Association, Center on Children and the Law and Circle Solutions. This document can be downloaded on the Resources page.

Resources and Links

		Standby Guardianship-A Means to Provide the Future Care of Your Children, HIV/AIDS Law Consortium of Western Massachusetts, 1998. Downloaded from: http://www.MassLegalHelp.org
Links
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		Masslegalservices.org MassLegalServices provides detailed and technical information about the legal issues facing low- and moderate-income Massachusetts residents. Although this site is intended for advocates and social service professionals, the materials here may be valuable to anyone seeking information about laws affecting Massachusetts residents.