Family Law Group

The Standby Guardianship Act became effective in Pennsylvania in 1999, providing guardians with the right to appoint a standby guardian to act should they become incapable of caring for a minor child. Prior law did not permit the immediate transfer of guardianship to another individual. Following a guardian's incapacitation or death, it may take as long as one year to obtain court approval of a traditional guardianship petition, during which time a minor child may be placed in foster care. Additionally, a minor child may experience difficulty securing medical treatment without a legal guardian to provide consent. The Act allows a guardian to bypass the lengthy traditional guardianship proceeding by designating a standby guardian, who may act for 60 days without court involvement or indefinitely with comparatively minimal court involvement.

What is the law in Pennsylvania?
Under the Act, a custodial parent, legal custodian, or legal guardian of a minor child may designate in writing a standby guardian to become the co-guardian or guardian of a minor child automatically upon the occurrence of a specified event. Upon the occurrence of the specified event, a standby guardian has the authority to act as a temporary co-guardian or guardian of a minor child for a period of 60 days without any court involvement. If a standby guardian believes he will need to act as co-guardian or guardian for a period of time greater than 60 days, he must petition the court to approve his designation as standby guardian prior to the expiration of the 60-day period.

What events can trigger the authority of the standby guardian?
According to the Act, a parent, custodian, or guardian can specify that a standby guardian's authority begins upon the occurrence of one or more of the following: the designator's incapacity, the designator's debilitation and the designator's signed and dated consent, or the death of the designator.

How does standby guardianship affect the designator's authority?
Once the specified event has occurred, the standby guardian's authority under the Act does not terminate the authority of the designating parent, custodian, or guardian; instead, the two act as co-guardians. In the event the designating parent, custodian, or guardian recovers from his incapacity or debilitation, the standby guardian's authority to act ends automatically and the minor child returns to the designator. Depending on the designator's health, the guardianship of the minor child automatically shifts back and forth between the designating parent, custodian, or guardian and the standby guardian an unlimited number of times.

What are the requirements for a standby guardianship designation?
The standby guardianship designation must identify all parties involved, including the minor child, the standby guardian, and the designating parent, custodian or guardian. Additionally, the designating parent, custodian, or guardian must obtain the signed consents of the standby guardian and the minor child's other parent, if any. If the consent of the minor child's other parent cannot be obtained, the designating parent, custodian, or guardian must include a written explanation as to why this consent is unavailable.

How is standby guardianship useful?
Although the concept of standby guardianships evolved during the AIDS crisis, as significant numbers of parents died or became ill and unable to care for their minor children, standby guardianship designations have broader application. For example, an elderly grandparent caring for a minor grandchild can designate a standby guardian to act in the event of his incapacity, illness, or death. Standby guardianships are much more inexpensive and flexible than traditional guardianship appointments, since the standby guardian is authorized to act without court intervention for up to two months. Further, a minor child returns to the designating parent, custodian, or guardian once capacity or ability is regained. Even if court intervention becomes necessary, approval of the standby guardianship is not a lengthy process and sometimes occurs without a hearing. Most significantly, a standby guardianship designation prevents a gap in the guardianship of a minor child, thus averting the use of foster care and creating consistency and predictability in the child's care.

MacElree Harvey
17 West Miner Street
Post Office Box 660
West Chester, PA 19381–0660
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