Social workers should be familiar with their states’ laws and policies on standby guardianship, which can be used by families to plan for the care of their children and can be used in planning for children in foster care.  Many states have developed laws to permit standby guardianship to address the needs of families living with HIV, other disabling conditions, or terminal illnesses to plan a legally secure future for their children. Approximately 23 states and the District of Columbia have laws that provide for the judicial creation of stand by guardianships.

In most standby guardianships:

  • A parent designates a certain person to be guardian for her or his children.
  • The parent retains control over the guardianship. The parent may determine when it can begin (although it may begin automatically if the parent becomes seriously ill or mentally incapacity) and can decide to end the guardianship if he or she is not pleased with the arrangement.
  • The guardianship may go into effect during the parent’s lifetime and may continue after the parent’s death.
  • The parent shares decision-making responsibility with the guardian.  It is expected that during the parent’s lifetime, the stand by guardian will defer to the parent’s authority, step forward when needed, and step back when the parent is able to resume parenting.

State Examples

New York State enacted the first standby guardianship statute in the United States in 1992 in response to the needs of families and children living with HIV/AIDS, although the statute is not limited to persons with illnesses caused by HIV/AIDS. The statute permits parents and guardians with a progressively chronic illness or irreversibly fatal illness to apply to the court for the nomination of a standby guardian.  It also allows parents and guardians to name a standby guardian in a one page writing similar to a will.  In 2000, the State broadened the categories of persons caring for minors able to designate a standby guardian for their charges. Legal custodians and primary caretakers of minors may name a standby guardianship either by application to a court or by a witnessed writing.  The primary caretaker must show that the actual parent, guardian or legal custodian of the child cannot be located with due diligence.

In Washington, DC, only a custodial parent with both physical and legal custody of the child can establish a standby guardianship.  It is required that a licensed clinician diagnose the parent in writing as having a chronic condition from which the parent will not likely recover.  The parent creates a document nominating an individual to be the stand by guardian, signs the document along with two witnesses over the age of 18, neither of whom is the stand by guardian. The parent then petitions the court for approval of the stand by guardianship if the triggering event has not occurred.  Once the triggering event has occurred, the stand by guardian assumes full guardianship responsibility of the child.

Stand by Guardianship Resources

Abandoned Infants Assistance Resource Center. Standby Guardianship.  (2000). Standby Guardianship.  Defines standby guardianship, provides an overview of current legislation on standby guardianship as of 2000, and describes standby guardianship in practice.