Maryland

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


I. Designation of Standby Guardian

A parent may designate a standby guardian in an attested document. The designation law permits the triggering event to be either mental incapacitation, or physical debilitation accompanied by written consent. (However, if the designation goes through the judicial appointment stage, two other triggering events may be added: a written, attested consent of the parent [Probate 13-903(e)(3)] or death [Probate 13-903(d)(2)(1)] ) The parent retains parental rights throughout, and can revoke the guardianship in writing. [Probate 13-904]

To be eligible to use the standby guardian law, the parent must be at significant risk of incapacitation or death within 2 years. A basis for making that statement must be included in the petition, although there is no requirement that the basis be a physician's diagnosis.[Probate 13-903]

An optional designation form is part of the statute, which simplifies this process for an ill parent. She need only fill in the blanks and sign the documents along with the proposed guardian before two witnesses who are over 18. [Probate 13-904]




II. Agreement of the Non-Custodial Parent

A unique and appealing aspect of the Maryland law is the provision for "reasonable efforts" in searching for the non-custodial parent. [Probate 13-903(a)-(3), and 904(f)(3)] When the triggering event occurs and the guardian files papers with the court, if the non-custodial parent's consent has been sought but not obtained, the guardian includes evidence of the reasonable efforts that were made. Typically, such efforts include an attempt at personal service, followed by mailing to last known addresses, and finally, publication of notice in a widely-read newspaper.




III. Role of the Standby Guardian

Although the law does not explicitly say that the parent and standby guardian shall have concurrent decision-making authority, it does say that the determination of incapacity, debilitation, or consent "may not, itself, divest a parent of any parental or guardianship rights." [13-9007(a)] That authority can be modified as the court sees fit. [Probate 13-907(b)]. In the designation, the parent can choose whether it shall be a guardianship limited to the child's person, or whether it shall include the child's property as well. The standby guardian must sign the designation, so is fully informed of its provisions. [Probate 13-904(d)(3)]

If a standby guardian has been identified through a parent's designation, a petition for guardianship must be filed within 180 days, or the standby guardian's authority will lapse. [13-904(e)(2)]

Once the triggering event occurs – mental incapacity or debilitation accompanied by consent (if only the designation is in force) or in addition death or consent alone (if judicial appointment of the standby guardian has already occurred) – the guardian assumes a number of obligations. He must obtain a physician's statement that describes the parent's condition along with the parent's consent – or the parent's consent alone, or a death certificate where appropriate. This must be done within 90 days of the event. [Probate 13-903(e)]

The standby guardian's authority can be revoked at any time by the parent in writing, or rescinded by the court. [13-904(h)]





IV. Court Process

A court hearing is held when the standby guardian files a petition for appointment, along with an attested designation document that includes a basis for stating that there is significant risk of death or incapacitation within 2 years. Presence of the custodial parent may be waived if she is too ill to appear. If reasonable efforts have not produced a non-custodial parent, the hearing may proceed. The court makes a judgment based on whether the child's best interests will be promoted by the guardianship. [Probate 13-903(d)]. The court can put whatever limitation it deems necessary upon the guardianship. [Probate 13-907(b)]

When the triggering event occurs, confirming documents must be filed within 90 days. Those documents could include the attending physician's "Determination of Incapacity or Debilitation," if such events had been listed in the petition. [Probate 13-903(e); 13-906] Incapacity is a "chronic and substantial inability, as a result of mental impairment, to understand the nature and consequences of decisions concerning the care of the person's dependent minor child," and debilitation is a "chronic and substantial inability, as a result of a physically incapacitating illness, disease or injury" to care for the child. [Probate 13-903( c)(d)]. Proof may also include the parent's written attested consent. [Probate 13-903(3)] While it is not entirely clear from the Maryland statute whether consent of the parent can operate alone under juducial appointment, or whether it need always be tied to debilitation, it can be noted that the statute only goes into effect for someone who will become incapacitated or die within 2 years. Consent would seem to be never far away from the issue of debilitation. There is no requirement that there be another hearing at this point.

Orphan's Court and Circuit Court have concurrent jurisdiction over guardianships for children. [Probate 13-105 and 106; Orphans 2-102 through 2-105]

		Annotated Code of Maryland Estates and Trusts Title 13. Protection of Minors and Disabled Persons Subtitle 9. Standby Guardian sec. 13-901, 13-903, 13-904, 13-906, 13-907, 13-106; Orphans 2-102 , 103, 2-104, 2-105.

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.

Joyce McConnell, Standby Guardianship: Sharing the Legal Responsibility for Children, 7 Md.J. Contemp.Legal Issues 249 (Fall/Winter 1995-1996).

Links