West Virginia

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


I. Designation of Standby Guardian

A parent who is "afflicted with a progressive or chronic condition" that is caused by "injury, disease, or illness" and likely to lead to "debilitation of incompetence" may designate a standby guardian at any time. [Probate 44A-5-2(h); 44A-5-5(a)]

The designation must describe the triggering events that will activate the guardianship, specifically (1) incompetence; (2) debilitation plus consent; and (3) death. [Probate 44A-5-5(b)] If there is a court order approving the standby guardianship, and if such request was made of the court at the petition stage, a triggering event may also be consent alone. [Probate 44A-5-4(c)] If the parent chooses to petition the court for approval of the standby guardianship before any triggering event occurs, she must establish her eligibility by asserting facts that show she is at imminent risk of dying or becoming physically or mentally incapable of caring for the child as a result of a "progressive chronic condition or illness." However, she need not submit medical documentation. [Probate 44A-5-3(b)(5)]

A standby guardian is to act as a "coguardian" in accordance with the parent's wishes. [Probate 44A-5-2(d)(5)] A parent may revoke the designation in writing. [Probate 44A-5-7(a)]




II. Agreement of the Non-Custodial Parent

As soon as the petition is filed, notice must be given "promptly" to non-custodial parents "whose identity and whereabouts are known." [Probate 44A-5-3( c)] The notice passes on the information that a standby guardianship does not alter custody or the non-custodial parent's legal rights, and that it is not required that the parent appear at the hearing. [Probate 44A-5-3( c)(2)] The non-custodial parent has a right to request review of the standby guardianship at any time to examine whether it is in the child's best interests. [Probate 44A-5-8]




III. Role of the Standby Guardian

The standby guardian only "temporarily" assumes duties, meaning that after a triggering event activates the guardianship, there must be a filing for a permanent guardianship or a formal custody determination. [Probate 44A-5-2(I); 44A-5-6] If the triggering event is death, the standby guardian has 90 days to accomplish that. If it is any other triggering event, the law requires that it be done "promptly." [Probate 44A-5-6]

The other documents – physician's written determination of incompetence or debilitation, and the parent's consent (where applicable), or a death certificate – are to be filed no later than 30 days after the triggering event. [Probate 44A-5-4(f); 44A-5-5(d)]

The duties that the standby guardian assumes may include both the child's person and property, or be limited to the person. [Probate 44A-5-2(I)] The tasks are those of a "coguardian," and shall be carried out "in a manner consistent with the known wishes of a qualified parent regarding the care, custody and support of the minor child." [Probate 44A-5-2(I)]




IV. Court Process

Court process begins when a petition for approval of the standby guardianship is filed. This can occur before the triggering event [Probate 44A-5-3(a)] or up to 30 days after it [Probate 44A-5-5(d)] Notice is sent to each parent and to any children more than 14 years old. [Probate 44A-5-3( c)] The court is required to hold a hearing if it is requested by a parent within 10 days of the notice being sent, or if there is pending custody litigation. [Probate 44A-5-3(d)] The court may appoint a guardian ad litem to represent the child. The custodial parent need not appear if she is "medically unable." [Probate 44A-5-3(e)]

Once the triggering event occurs, and the proper documents have been filed, a petition for permanent guardianship is to be filed to formally determine custody. [Probate 44A-5-6] A request to review the standby guardianship to determine if it is in the child's best interests may be made at any time by a parent, stepparent, "functional parent," adult sibling or any adult related to the child by blood or marriage. [Probate 44A-5-8]

		West Virginia Code Annotated Chapter 44: Administration of Estates and Trusts Article 5: Standby guardianship Sections 44A-5-1; 5-2; 5-3; 5-4; 5-5; 5-6; 5-7; 5-8

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.