Topics on this page

• Standby guardianship generally
• Designation of standby guardian
• Designation forms
• When does the guardianship take effect?
• Petition for judicial appointment by standby guardian
• Court appointment of standby guardian
• Terminating guardianship
• Brochures

Standby guardianship generally

A standby guardian is a person appointed by a parent of a child to take care of the child if the parent:

• dies or becomes mentally incapacitated 
• becomes debilitated by an illness or injury 
• is subject to an adverse immigration action

Standby guardianship does not affect the custody of a child. Parents do not lose their parental rights by appointing a standby guardian. At least one parent must consent to the appointment, and a parent may revoke their consent to the standby guardianship at any time. 

Read the Law: Md. Code, Estates & Trusts § 13–901-908

Designation of standby guardian

Parents should, if possible, designate a standby guardian before the guardian is needed.  A parent may designate a standby guardian through a written designation. The written designation shows the parent’s intent to have the standby guardian become the child’s guardian if the parent becomes mentally incapacitated, physically debilitated, or subject to an adverse immigration action. The written designation must include:

• the identity of the parent
• the identity of the children for whom the standby guardian is being designated
• the duties of the standby guardian

The parent and the designated standby guardian must sign the Designation Form.  The form must also include the signatures of 2 adults who witnessed the parent and guardian signatures. The witnesses cannot be individuals designated as the standby guardian.

NOTE: There is no requirement that the parents be imminently incapacitated. 

Designation forms

Maryland law provides a form that can be used to designate a standby guardian but does not require a specific format. Parents can complete the Parental Designation and Consent to Beginning the Standby Guardianship (Designation Form) provided by the Maryland Judiciary.  The Designation Form includes the following information:

• Identity of the parents
• Identity of children for whom a standby guardian is being appointed
• Identity and contact information for the individual designated as the standby guardian
• The designated powers and duties of the standby guardian
  • The Standby Guardian can be designated as one, or both, of the following:
  • Guardian of the Property - makes financial decisions (e.g., paying bills or costs to cover the child(ren)'s personal needs, applying for benefits, paying taxes).
  • Guardian of Person - makes non-financial decisions (e.g., housing, medical care, education, clothing, food, and everyday needs). 
• When the standby guardian's authority becomes effective (sometimes called a "Triggering Event").
• How long the standby guardianship lasts.
  • The Designation Form indicates that the standby guardianship lasts for 180 days. If necessary, the guardian can petition the court for appointment as guardian to extend beyond 180 days.

Non-English versions of the form can be downloaded from the Standby Guardianship Project.

Parents can consent to the designation of the standby guardian together or, if the parents are no longer together, separately. A Consent to Designation of Standby Guardian is included as part of the Designation Form and should be completed if the parents are no longer together. The filing parent may be unable to obtain consent from the other parent (or any other party with parental rights). In that case, the individual should be identified on the form, and the reason for non-consent should be indicated.

Read the Law: Md. Code, Estates & Trusts § 13-904

When does the guardianship take effect? 

The guardianship takes effect when a “triggering event” occurs, and the standby guardian receives documentation related to the event. A triggering event can be mental incapacitation, physical debilitation, or the start of an adverse immigration action against the parent. Once the guardianship begins, the designated individual will serve as a standby guardian for up to 6 months (180 days). If the incapacity, debilitation, or adverse immigration action continues for an extended period, the standby guardian must seek judicial appointment, or the guardianship will terminate. 

The following defines the triggering events (when the guardianship begins) and explains what must be filed by the standby guardian with a petition for judicial appointment. 

Read the Law: Md. Code, Estates & Trusts § 13-904

Mental Incapacitation

Mental incapacitation means that a doctor has determined that the parent is mentally unable to care for the child. 

Guardianship Begins: when the standby guardian receives written documentation from a doctor that the parent has a mental impairment that makes them unable to care for their child.
 

Physical Debilitation 

Physical debilitation means that a doctor has determined that the parent can no longer physically care for the child. 

Guardianship Begins: when the standby guardian receives the following documents:

• copy of the parent’s written consent to the standby guardianship. 
• copy of a determination from a doctor that indicates the parent is physically debilitated
• birth certificate for each child for whom standby guardian is designated
   

Adverse Immigration Action

The law defines an adverse immigration action to include (but not limited to):

• Arrest for an alleged violation of federal immigration law
• Detention by the Department of Homeland Security (or any agency acting on behalf of Homeland Security)
• Voluntary or involuntary departure from the United States under an order by the Immigration Court
• Revocation of a visa by the Department of State
• Denial of readmission by Homeland Security
• Denial of admission by Homeland Security

Guardianship Begins: when the standby guardian receives:

• copy of the parent’s written consent to the standby guardianship. 
• evidence that the parent is subject to an adverse immigration action

Read the Law: Md. Code, Estates & Trusts § 13-901, § 13-904
 

Petition for judicial appointment by standby guardian

In the first 180 days after the triggering event occurs, the standby guardian is authorized to care for the children without any need to file in court. The standby guardianship automatically ends after 180 days unless the standby guardian files a Petition by Standby Guardian (Judicial Appointment) (CG-GN-042). The Petition should be filed in the circuit court where the child resides.  Filing the petition automatically extends the standby guardianship until the court rules on the petition. 

The standby guardian must file the following documents with the court along with the petition:

• A copy of the parent’s written consent to the standby guardianship (this can be in a completed Designation Form) 
• A copy of the doctor’s determination of incapacity or debilitation or evidence of the adverse immigration action against the parent
• Child’s birth certificate
• If the standby guardian has served for more than 3 months:  
  • a statement from the child's primary healthcare provider that the child receives appropriate healthcare; 
  • if the child is enrolled in school, a copy of the child's more recent report card or other progress report; and 
  • a reference to all court records related to the child during that period.

Read the Law: Md. Code, Estates & Trusts § 13-903

Parental Consent

If only one parent is unavailable, the standby guardian must identify other persons with parental rights (biological parent or guardian). If their whereabouts are known, the guardian must make good faith efforts to notify them about the Petition.  The other parent will receive notice as an interested person. If the other parent does not consent to the guardianship, the Petition should provide the reason. If the other parent’s whereabouts are unknown, the court may order notice by publication or posting as in other guardianship cases.

In the case of an adverse immigration action, if a parent resides outside the United States, the standby guardian may file the petition without the parent's consent.  If the standby Guardian cannot locate the child's other parent, they must give the court proof of reasonable efforts to find the other parent. If the court is satisfied that reasonable efforts were made to locate the other parent, the court may proceed without the other parent's approval. 

Court appointment of standby guardian

The court, in the case of mental incapacity, can appoint a standby guardian if a parent demonstrates that there is a significant risk that the parent will either become incapacitated or die within 2 years of the filing of the Petition By Parent (Appointment of Standby Guardian). If this is the case, the court may appoint the standby guardian.  The Petition By Parent (CC-GN-43) can be found on the Maryland Courts website.

In other cases where the standby guardian wants the standby guardianship authority to last more than 180 days, the standby guardian must file the Petition before the end of the 180 days. Filing the Petition automatically extends the standby guardian's authority until the court takes action.  The Petition must be filed in the court where the child resides.  The Petition (CC-GN-042) can be found on the Maryland Courts website.  The Court will hold a hearing in all guardianship cases involving a minor, even if there is parental consent.

Read the Law: Md. Rules, Title 10, Chapter 400 and Rule 10-404

For a judicial appointment to be made, notice to both parents is necessary. If there is only one parent petitioning, proof must be shown that reasonable efforts have been made to locate the other parent, the other parent is dead, or that the other parent consents to the guardianship either through testimony at court or by a signed consent form or in the case of adverse immigration cases, the other parent resides outside the United States.

Read the Law: Md. Code, Estates & Trusts § 13-903

Terminating guardianship

The parent can revoke the standby guardianship at any time.  

• Before the court Petition is filed: The consent may be revoked before Petition is filed. The parent should notify the standby guardian in writing.  
• After the court Petition is file: If the petition has been filed with the court, the parent must execute a written revocation and file it with the court. They must also promptly notify the standby guardian of the revocation.

The Standby Guardianship Project provides a Revocation of Parental Designation And Consent To Beginning Of Standby Guardianship Of Minor Children form that can be used to revoke a standby guardianship.

Read the Law: Md. Code, Estates & Trusts § 13-903 and 904
 

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