New Jersey

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

The New Jersey Standby Guardianship Act applies to parents or legal custodians who are "suffering from a progressive chronic condition or fatal illness." [Probate 3B:12-68] A parent may designate a standby guardian for her children in an attested written document. A simple optional form is included in the statute. The triggering events may include all, but must include at least one of the following: mental incapacitation; physical debilitation accompanied by written, attested consent; or death.

A designation that is not followed by a petition for court appointment of the standby guardianship expires in 6 months. [Probate 3B:12-76.a] A designation plus petition for appointment must show that there is a "significant risk" of death, incapacitation or debilitation as a result of a "progressive chronic condition or fatal illness." [Probate 3B:12-72.b(2)] When the designation is filed along with a petition, the court holds a hearing to determine whether such a guardianship promotes the best interests of the child. [Probate 3B:12-72.d] The designation carries the weight of a "preference" with the court, subject to another parent's rights. [Probate 3B:12-76.b] However, the court also considers the preferences of the child. [Probate 3B:12-77]

The parent retains "full parental rights to the extent consistent with [her] condition." [Probate 3B:12-74.b] She may revoke the designation either orally, or in writing, or in any other way that shows her intent. [Probate 3B:12-75.e]





II. Agreement of the Non-Custodial Parent

Notice of the court hearing must be given to the parent within 30 days of the filing, unless the non custodial parent's rights "have been previously terminated by court order or consent." A "diligent search" must be made for the non-custodial parent. If the parent cannot be located in this way, the case can proceed. [Probate 3B:12-72.f] There is no requirement that the non-custodial parent sign the designation.




III. Role of the Standby Guardian

The standby guardian's duties begin when the triggering event, as described in the designating document or court order, occurs. That triggering event will be: mental incapacity; debilitation accompanied by written, attested parental consent; or death. [Probate 3B:12-72.d] A court-appointed standby guardian is to receive the attending physician's written determination of the incapacitating or debilitating condition, and file it with the court. The standby guardian has 60 days after the events to do this. [Probate 3B:12-73; 12-75]

When the triggering event occurs, the standby guardian shares decision-making authority with the parent, depending on the parent's condition, unless the designation and court order provide otherwise. [Probate 3B:12-75.d] A guardian for a minor has, in broad terms, parental powers. [Probate 3B:12-51]. He facilitates the child's education and social activities and authorizes professional care, treatment and advice. [Probate 3B:12-52]

Duties of a standby guardian who is designated, but not court appointed, expire in six months. [Probate 3B:12-76.a] Once the appointment is made, if confirming documents are filed and the court appoints the standby guardian as a permanent guardian, duties last until the child reaches majority, or the appointment is revoked, or an intervening event occurs like death or adoption. [3B:12-55]





IV. Court Process

The court process begins when the designation document is filed along with a petition requesting appointment of the standby guardian. Notice is given to the non-custodial parent, if he can be found, and any child 14 or older, as well as others named in the petition who are in close relationship to the family. [Probate 3B:12-72.f]. The court sets a hearing to determine the facts and whether the guardianship is in the child's best interests. [Probate 3B:12-72(d)]. There is abundant case law under the Children's Code to guide the court in a best interests determination. A guardian ad litem or legal counsel may be appointed to represent the child. [Probate 3B:12-77] Presence of the petitioning parent at the hearing may be waived if she is too ill to appear. [Probate 3B:12-72( c)]

Once the appointment of a standby guardian is made by the court, with whatever modifications to the designation it deems necessary, there is no court action until documents, such as a physician's determination or a death certificate, are filed, confirming that a triggering event has occurred. That filing must take place within 60 days of the event. The court then may confirm the guardianship, presumably without another hearing being necessary in the typical case. [Probate 3B:12-73].

Upon the parent's death there is a rebuttable presumption that the standby guardian is capable of serving as permanent guardian. [Probate 3B:12-76.b]

		New Jersey Statutes Annotated Title 3B. Administration of Estates – Decedents and Others Chapter 12. Minors and Mental Incompetents. Article 7. Standby Guardianship Act Section 3B:12-51, -52, 3B:12-72, -73, -74, -75, -76, -77; Children's Code 9:2-9