Pennsylvania

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


I. Designation of Standby Guardian

The Pennsylvania Standby Guardianship Act permits a parent to designate a standby guardian in a written, attested document. An optional, simple form is printed in the statute, for which a parent can fill in the blanks with pertinent information. The statute's optional form permits the parent to describe the events that will activate the guardianship, seeming to give the parent a free hand. [Domestic Relations 23-5611] However, mental and organic incapacity, as well as physical debilitation plus consent are described in the definitions [Dom. Rel. 23-5602] and, along with consent alone, and death, required to be included as triggering events in the petition that accompanies the designation. [Dom. Rel. 23-5612]. Moreover, the section of the law that requires proof of the triggering event does refer to a physician's determination of incapacity or debilitation [Dom.. Rel. 23-5612(a)] and the form of that determination is described in the definitions. [Dom. Rel. 23-5602]

There is strong support for the validity of the parent's designation. If the designator is a sole, surviving parent, or if the other parent has consented, or his consent is not required, there is a rebuttable presumption that the guardianship is in the child's best interests. [Dom. Rel. 23-5612(d)] A hearing may not even be required. [Dom. Rel. 23-5612(e)]

The designation and petition for appointment may be filed at any time. If before the triggering event, only the parent may file; if after, the standby guardian may file. If the matter is approved by the court before a triggering event, no further court action is required, not even filing confirming documents. [Dom. Rel. 23-5613(b)] In Pennsylvania, therefore, if the paperwork is carefully completed, there would be little formal involvement with in-court appearances.

After a petition has been filed a parent may revoke the designation in writing and file the revocation with the court. Alternatively, an oral revocation can be proved by clear and convincing evidence. [Dom. Rel. 23-5614 (a) and (c)] The effect is to give a parent maximum control over the process. She never gives up her parental rights. [Dom. Rel. 23-5611(4); -5613(a)] and she may designate and revoke at will.




II. Agreement of the Non-Custodial Parent

The general rule is that designation of a standby guardian is improper if there is another parent who is willing and able to care for the child, whose whereabouts are known, and whose parental rights have not been terminated. [Dom. Rel. 23-5611(a)] There are "diligent search" procedures described in the Pennsylvania Rules of Civil Procedure in Custody Matters that would permit a parent to show the court that the non-custodial parent cannot be found. [Dom. Rel. 23-5612(b)(2)] There are descriptions of parental unfitness in several places in Pennsylvania law. For example, the Probate Court does not permit a non-custodial parent to appoint a guardian through a will if he has neglected or refused to provide for his child for one year previous to his death, or if he deserted the child or failed to perform parental duties. [Probate 20-2519] A parent has a number of legal tools to develop evidence for the court that the non-custodial parent cannot be found, or that his consent need not be obtained.

If he is found, and he does consent to the guardianship, his signature can be added to the designating document or submitted in a separate signed document. [Dom.Rel.23-5611( c)(2) and (4)]




III. Role of the Standby Guardian

Although the standby guardian is not required by the law to sign the designating document in the presence of witnesses, there is a signature line on the printed form for the standby guardian. [Dom. Rel. 23-5611( c)(4)] The law describes the nature of shared authority with the parent once the guardianship has been activated. "A coguardian shall assure frequent and continuing contact with and physical access to the child and shall further assure the involvement of the parent, to include, to the greatest extent possible, in the decision making on behalf of the child." [Dom.Rel. 23-5613(a)]

If the designation and the petition are filed prior to any triggering event, and the court approves the standby guardian, no further court actions need be taken by the guardian once the triggering event occurs. If, on the other hand, the designation document has been prepared, but not filed, prior to the triggering event, the standby guardian has 60 days of temporary authority to file a petition for approval of the designation, along with confirming evidence. That evidence would be a physician's determination of mental or organic incapacity or physical debilitation; and/or a signed and witnessed parental consent, or a death certificate. [Dom. Rel. 23-5612(a); 5613(b)]

Once the court has approved the guardianship, the standby guardian becomes the permanent guardian.




IV. Court Process

The Pennsylvania Standby Guardianship Act sets up a two-track process for activating the guardianship – both of which begin with filing a designating document and a petition for appointment. In the first case, these documents are filed by the parent prior to any triggering event. If the court approves the guardianship, finding that the documents are all in order and the proper consents have been obtained, no further court action is required. The standby guardian's powers are activated upon occurrence of the triggering event, and if the parent dies, the standby guardian automatically becomes a permanent guardian. If all consents are in order, or if the designator is the sole, surviving parent, there is a presumption that the guardianship is in the child's best interests, and there may not even be a hearing. [Dom. Rel. 23-5612(e)] If there is a hearing, the presence of the designating parent may be waived if she is ill. [Dom. Rel. 23-5612(g)]

The second possible track is that the designating document will be prepared ahead of time, but not filed in court until after a triggering event occurs. In that case it will usually fall upon the standby guardian to file the designation and a petition for appointment, along with confirming evidence that the event has occurred. After court approval, court process moves in the same way: no further court action is required to convert the guardianship to permanency.

		1998 Pennsylvania Legislative Services Act 1998-103 (SB 1051) 182 Reg. Session of General Assembly Amends: Title 23 (Domestic Relations) Chapter 56: Standby Guardianship Act. sections Domestic Relations 23-5601; -5602;-5603;-5611;-5612;-5613;-5614; Probate 20-2519