U.S. Department of Health and Human Services

Administration for Children and Families

Administration on Children, Youth and Families

Children’s Bureau

Child Welfare Information Gateway

Children’s Bureau/ACYF

1250 Maryland Avenue, SW

Eighth Floor

Washington, DC 20024

800.394.3366

Email: info@childwelfare.gov

http://www.childwelfare.gov

STATE 

STATUTES

Current Through 

July 2011

Standby 

Guardianship

Electronic copies of this publication 

may be downloaded at 

http://www.childwelfare.gov/

systemwide/laws_policies/statutes/

guardianship.cfm

To find statute information for a 

particular State, go to 

http://www.childwelfare.gov/

systemwide/laws_policies/state/

index.cfm

To find information on all the 

States and territories, order a copy 

of the full‐length PDF by calling 

800.394.3366 or download it at 

http://www.childwelfare.gov/

systemwide/laws_policies/statutes/

guardianship.pdf

Every State permits transfer of guardianship 

authority over a child from a parent to another adult 

when the child has no other parent available to 

assume responsibility for care and custody of the 

child. A traditional guardianship provides for the 

care of a child in the event of the parent’s death or 

permanent disability and is generally regarded as 

a permanent transfer of custody and authority from 

the parent to the guardian.

One recent approach to transferring custody is 

facilitated through standby guardianship laws. 

Many States developed these laws specifically to 

address the needs of parents living with HIV/AIDS, 

other disabling conditions, or terminal illnesses 

who want to plan a legally secure future for their 

children. Approximately 26 States and the District 
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of Columbia have made statutory provisions for standby 

guardianships.1

Most standby guardianship laws include these provisions:

• A parent may designate a certain person to be guardian for 

his or her children.

• The guardianship may go into effect during the parent’s 

lifetime and may continue after the parent’s death.

• The parent retains much control over the guardianship. He 

or she may determine when it can begin (although it may 

commence automatically if the parent becomes seriously ill or 

mentally incapacitated) and can withdraw the authority if the 

arrangement does not work to the parent’s satisfaction.

• The parent shares decision-making responsibility with 

the guardian. During the parent’s lifetime, the guardian is 

expected to be in the background, embrace responsibility 

when needed, and step back when the parent is feeling 

capable.

• The court order for standby guardianship is supported by the 

authority of a court that has examined facts relevant to the 

particular family.

Many States allow a parent or legal guardian to nominate a 

standby guardian regardless of the nominator’s health status. 

However, six States and the District of Columbia preclude 

such nomination unless the parent is chronically ill or has been 

diagnosed with a terminal illness.2

 In Colorado, Massachusetts, 

and Wisconsin, the parent must be at significant risk of death or 

a condition of incapacity that impairs the parent’s ability to care 

for his or her child within 2 years.

Standby guardianship is typically established in one of two ways: 

• Six States require the nominating parent to file a petition, 

followed by a court hearing, prior to the circumstance 

1	 The word approximately is used to stress the fact that the States frequently amend

their laws. The States that, as of July 2011, have provisions for standby guardianship

include Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii,

Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska,

Nevada, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia,

West Virginia, and Wisconsin.

2	 Alabama, California, Nebraska, North Carolina, Virginia, and West Virginia.

Establishing 

a Standby 

Guardian 
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(referred to as a “triggering event”) that necessitates the 

standby guardianship.3

• Seventeen States and the District of Columbia allow the 

parent to nominate a standby guardian through a written 

designation that is signed by two witnesses. The nomination 

must be affirmed by filing a petition prior to or after the 

triggering event and by attending a court hearing following 

the event.4

• Nine States allow the parent to use either method to 

nominate a standby guardian.5

• Tennessee allows parents to designate a standby guardian 

through a power of attorney without court approval.

When confirming an appointment for a guardian, approximately 

six States require that a child of a certain age must be notified 

of the hearing and that the court must consider the child’s 

preferences. The age requirement varies by State.6

A triggering event is what must occur to activate the standby 

guardian’s authority. Nineteen States and the District of 

Columbia define this event as the parent’s death, mental 

incapacity, or physical debilitation.7

 In seven States and the 

District of Columbia, the parent must provide consent when 

physical debilitation is the triggering event.8

 Nine States and 

the District of Columbia require that an attending physician 

document the incapacity or debilitation.9

 In eight States, the 

parent’s consent alone is sufficient to activate the guardianship.10

3	 Arkansas, Delaware, Iowa, Michigan, Nebraska, and New Jersey.

4	 California, Colorado, Connecticut, Florida, Georgia, Hawaii, Illinois, Maryland,

Massachusetts, Minnesota, Nevada, New York, North Carolina, Pennsylvania, Virginia,

West Virginia, and Wisconsin.

5	 California, Illinois, Maryland, Massachusetts, New York, North Carolina, Virginia, West

Virginia, and Wisconsin.

6	 In Arkansas, Illinois, Massachusetts, and Nevada, the court must consider the wishes of

a child age 14 or older. In Colorado and Virginia, the court must consider the wishes of a

child age 12 or older.

7	 Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois,

Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New York, North Carolina,

Pennsylvania, Virginia, West Virginia, and Wisconsin.

8	 Arkansas, Maryland, Minnesota, Nebraska, North Carolina, Pennsylvania, and

Wisconsin.

9	 Colorado, Delaware, Georgia, Hawaii, Massachusetts, New Jersey, New York, North

Carolina, and Wisconsin.

10 Illinois, Massachusetts, New York, North Carolina, Pennsylvania, Virginia, West Virginia,

and Wisconsin.

Activating 

the Standby 

Guardian’s 

Authority
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Once nominated, the standby guardian is authorized to assume 

responsibility for the child immediately upon being notified of 

the occurrence of a triggering event. In 15 States and the District 

of Columbia, the standby guardian whose nomination was by 

written designation has a statutorily prescribed amount of time 

in which to file a petition with the court for official appointment 

as the child’s guardian.11 In 10 States, the standby guardian who 

was previously named guardian in a petition to the court must 

file documents with the court to confirm the appointment of 

guardianship.12

Approximately 13 States and the District of Columbia require 

that both parents, if living, consent to the appointment of a 

standby guardian.13 Six States require that notice of any hearing 

regarding the nomination of a guardian be provided to the 

child’s noncustodial parent.14 In Massachusetts, a noncustodial 

parent may prevent the appointment of a guardian by filing a 

written objection with the court within 30 days. Some States 

allow the court to proceed without the noncustodial parent’s 

consent under the following circumstances: 

• The parent’s parental rights have been terminated.15

• After reasonable efforts have been made to locate the parent, 

his or her whereabouts remain unknown.16

• The parent is unwilling or unable to assume responsibility for 

care of the child.17

The 

Noncustodial 

Parent

11 A petition must filed within 20 days in Florida; 30 days in Colorado, Hawaii,

Massachusetts, Virginia, and West Virginia; 60 days in Illinois, Minnesota, New York, and

Pennsylvania; 90 days in Connecticut, the District of Columbia, and North Carolina; 120

days in Georgia; and 180 days in Maryland and Wisconsin.

12 Confirming documents must be filed within 30 days in Delaware, Massachusetts,

Virginia, and West Virginia; 60 days in Illinois and New Jersey; and 90 days in Maryland,

New York, North Carolina, and Wisconsin.

13 California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Maryland,

Minnesota, Missouri, Nevada, Pennsylvania, and Wisconsin.

14 Colorado, New Jersey, New York, North Carolina, Virginia, and West Virginia.

15 In 12 States and the District of Columbia, including California, Colorado, Connecticut,

Delaware, Georgia, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey,

Pennsylvania.

16 In 10 States, including Georgia, Illinois, Maryland, Minnesota, Nevada, New Jersey,

Pennsylvania, Virginia, West Virginia, and Wisconsin.

17 In five States, including Illinois, Minnesota, Nevada, Pennsylvania, and Wisconsin.
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Authority of 

the Parent vs. 

the Standby 

Guardian 

Approximately 10 States and the District of Columbia provide 

that once a standby guardianship is activated, the standby 

guardian and parent, while living, have concurrent or shared 

authority.18 Statutes in 15 States and the District of Columbia 

specifically state that the commencement of a guardianship does 

not in any way limit or terminate the parent’s parental rights.19

However, three States provide that once the guardianship is 

activated, the standby guardian assumes sole authority.20 In 

six States and the District of Columbia, a standby guardian’s 

authority becomes inactive upon an attending physician’s written 

certification that the parent is restored to health.21

In 15 States and the District of Columbia, when a nomination of 

a standby guardian has been made by written designation, the 

parent may revoke the designation by informing the standby 

guardian in writing.22 After an appointment has been approved 

by the court, 13 States and the District of Columbia require 

that a written revocation be filed with the court and that the 

standby guardian be notified in writing.23 In eight States and the 

District of Columbia, a person may refuse an appointment to 

be a standby guardian by notifying the court and the parent in 

writing.24

Withdrawing 

Guardianship 

18 California, Delaware, Georgia, Minnesota, New Jersey, New York, North Carolina,

Pennsylvania, Virginia, and West Virginia.

19 Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska,

New Jersey, New York, North Carolina, Pennsylvania, Virginia, West Virginia, and

Wisconsin.

20 Florida, Illinois, and Iowa.

21 Connecticut, Minnesota, Missouri, Virginia, West Virginia, and Wisconsin.

22 Colorado, Connecticut, Delaware, Florida, Hawaii, Iowa, Maryland, Massachusetts,

Minnesota, Nevada, Pennsylvania, Tennessee, Virginia, West Virginia, and Wisconsin.

23 Delaware, Florida, Iowa, Maryland, Massachusetts, Michigan, New Jersey, New York,

North Carolina, Pennsylvania, Virginia, West Virginia, and Wisconsin.

24 Delaware, Florida, Maryland, New Jersey, New York, Virginia, West Virginia, and

Wisconsin.
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This publication is a product of the State Statutes Series 

prepared by Child Welfare Information Gateway. While 

every attempt has been made to be complete, additional 

information on these topics may be in other sections of a 

State’s code as well as agency regulations, case law, and 

informal practices and procedures.

Suggested Citation:

Child Welfare Information Gateway. (2011). Standby 

guardianship. Washington, DC: U.S. Department of Health 

and Human Services, Children’s Bureau.
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Alabama

 These issues are not addressed in statutes reviewed. 

Alaska

 These issues are not addressed in statutes reviewed. 

American Samoa

 These issues are not addressed in statutes reviewed. 

Arizona

 These issues are not addressed in statutes reviewed. 

Arkansas

Who Can Nominate a Standby Guardian 

Citation: Ann. Code § 28-65-221(a)

 Any parent who is chronically ill or near death may have a standby guardian appointed by the court. 

How to Establish a Standby Guardian 

Citation: Ann. Code §§ 28-65-221(a); 28-65-204(b)(1)-(2)

The parent must use the same procedures outlined in the subchapter for establishing a guardianship. 

The court shall appoint as guardian the person who is most suitable and is willing to serve, having due regard to: 

• Any request contained in a will or other written instrument executed by the parent 

• Any request for the appointment of a person as his or her guardian made by a minor age 14 or older 

How Standby Authority Is Activated 

Citation: Ann. Code § 28-65-221(a)

The standby guardian’s authority would take effect as outlined in an order of standby guardianship upon:

• The death of the parent

• The mental incapacity of the parent

• The physical debilitation and consent of the parent

The standby guardian shall immediately notify the court upon the death, incapacity, or debilitation of the parent and 

shall immediately assume the role of guardian of the minor children. The court shall enter an order of guardianship in 

conformance with this section. 

Involvement of the Noncustodial Parent

This issue is not addressed in the statutes reviewed. 
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Authority Relationship of the Parent and the Standby 

Citation: Ann. Code § 28-65-221(a)

The parent does not surrender parental rights with the appointment of a standby guardian. 

Withdrawing Guardianship 

Citation: Ann. Code § 28-65-401

Guardianship is terminated upon a minor’s death, adoption, emancipation, attainment of majority, or by order of the 

court. 

California

Who Can Nominate a Standby Guardian 

Citation: Prob. Code § 2105

A custodial parent who has been diagnosed as having a terminal condition, as confirmed by a licensed physician, 

 may nominate a standby guardian. 

How to Establish a Standby Guardian 

Citation: Prob. Code § 1502

A nomination of a guardian may be made: 

• In the petition for the appointment of the guardian or at the hearing on the petition 

• In a writing signed either before or after the petition for the appointment of the guardian is filed 

How Standby Authority Is Activated 

Citation: Prob. Code §§ 2105; 1502

SThe court may appoint the custodial parent and a person nominated by the custodial parent as joint guardians of 

the child. 

The nomination of a guardian becomes effective when made or upon the occurrence of such specified condition or 

conditions as are stated in the writing, including the subsequent legal incapacity or death of the person making the 

nomination. 

Involvement of the Noncustodial Parent 

Citation: Prob. Code §§ 1500; 2105

Subject to § 1502, a parent may nominate a guardian of the person or estate, or both, of a minor child in either of 

the following cases:

• The other parent nominates, or consents in writing to the nomination of, the same guardian for the same 

child.

• At the time the petition for appointment of the guardian is filed, either the other parent is dead or lacks 

legal capacity to consent to the nomination, or the consent of the other parent would not be required for an 

adoption of the child. 

The appointment of a joint or standby guardian shall not be made over the objections of a noncustodial parent 

unless it is found that the noncustodial parent’s custody would be detrimental to the minor. 
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Authority Relationship of the Parent and the Standby 

Citation: Prob. Code § 2105

The custodial parent and standby guardian will share in the care, custody, and control of the child.

It is the intent of the Legislature for a parent with a terminal condition to be able to make arrangements for the 

joint care, custody, and control of his or her minor children to minimize the emotional stress of, and disruption for, 

the minor children when the parent is incapacitated or upon the parent’s death, and to avoid the need to provide 

a temporary guardian or place the minor children in foster care, pending appointment of a guardian, as might 

otherwise be required. 

Withdrawing Guardianship 

Citation: Prob. Code § 1502

Unless the writing making the nomination expressly provides otherwise, a nomination made under this article 

remains effective notwithstanding the subsequent legal incapacity or death of the person making the nomination. 

Colorado

Who Can Nominate a Standby Guardian 

Citation: Rev. Stat. § 15-14-202

A guardian may be appointed in a will or another signed writing by a parent for any minor child the parent has. A 

guardian may also be appointed in a will or another signed writing by a guardian of a minor child. A guardian may 

 not appoint a surviving parent who has no parental rights to be a successor guardian. 

How to Establish a Standby Guardian 

Citation: Rev. Stat. § 15-14-202

The appointment may specify the desired limitations on the powers to be given to the guardian. 

Upon petition of an appointing parent or guardian and a finding that the appointing parent or guardian will likely 

become unable to care for the child within 2 years, the court, before the appointment becomes effective, may 

confirm the selection of a guardian by a parent or guardian and terminate the rights of others to object. If the child is 

age 12 or older, he or she must consent to the appointment of a guardian. 

How Standby Authority Is Activated 

Citation: Rev. Stat. § 15-14-202

Subject to § 15‐14‐203, the appointment of a guardian becomes effective upon the death of the appointing parent 

or guardian, an adjudication that the parent or guardian is an incapacitated person, or a written determination by 

a physician who has examined the parent or guardian that the parent or guardian is no longer able to care for the 

child, whichever occurs first.

The guardian becomes eligible to act upon the filing of an acceptance of appointment, which must be filed within 

30 days after the guardian’s appointment becomes effective. Unless the appointment was previously confirmed by 

the court, within 30 days after filing the notice and the appointing instrument, a guardian shall petition the court for 

confirmation of the appointment. 
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Involvement of the Noncustodial Parent 

Citation: Rev. Stat. §§ 15-14-203; 15-14-204; 15-14-205

Until the court has confirmed an appointee, the other parent may prevent or terminate the appointment at any time 

by filing a written objection with the court. 

Consent is required unless either the parent’s parental rights have been terminated or the parent is unwilling or 

unable to exercise such rights.

After a petition for appointment of a guardian is filed, the court shall schedule a hearing. Notice of the hearing and a 

copy of the petition must be given to the noncustodial parent. 

Authority Relationship of the Parent and the Standby 

Citation: Rev. Stat. § 15-14-202

The appointment of a guardian by a parent does not supersede the parental rights of either parent. 

Withdrawing Guardianship 

Citation: Rev. Stat. §§ 15-14-202; 15-14-210

The appointing parent or guardian may revoke or amend the appointment at any time before it is confirmed by the 

court. The authority of the guardian terminates upon the appointment of another guardian by the court, the filing of 

an objection by another person, or the refusal of the minor age 12 or older to consent. 

The guardianship terminates upon a minor’s death, adoption, emancipation, or attainment of majority, or as ordered 

by the court. 

Connecticut

Who Can Nominate a Standby Guardian 

Citation: Ann. Stat. § 45a-624

A parent or guardian, as principal, may designate a standby guardian of a minor in accordance with the provisions of 

 §§ 45a‐624 to 45a‐624g, inclusive. 

How to Establish a Standby Guardian 

Citation: Ann. Stat. §§ 45a-624; 45a-624b

A designation of a standby guardian shall be in writing and signed and dated by the principal with at least two 

witnesses. The principal shall provide a copy of such designation to the standby guardian. 

The form for a written designation of a standby guardian is provided in § 45a‐624b. 

How Standby Authority Is Activated 

Citation: Ann. Stat. §§ 45a-624; 45a-624c; 45a-624e

The designation shall take effect upon the occurrence of a specified contingency, including, but not limited to, the 

mental incapacity, physical debilitation, or death of the principal, provided a written statement signed under penalty 

of false statement has been executed pursuant to § 45a‐624c that such contingency has occurred. 

If a designation of a standby guardian is effective at the time of death of the principal, the designation shall remain 

in effect for a period of 90 days after the death. At the end of the 90‐day period, the authority of the standby 

guardian shall cease, unless the standby guardian files an application for guardianship with the probate court in the 

district in which the minor resides and temporary custody of the minor is granted to the standby guardian or the 

court appoints the standby guardian as guardian of the person of the minor. 
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Involvement of the Noncustodial Parent 

Citation: Ann. Stat. § 45a-624a

If both parents are alive at the time the designation is made, both must consent to the designation unless either has 

been removed as guardian or has had parental rights terminated. 

Authority Relationship of the Parent and the Standby 

Citation: Ann. Stat. §§ 45a-624d; 45a-624e

When a designation of a standby guardian becomes effective upon the occurrence of a specified contingency, the 

standby guardian shall have the authority and obligations of a guardian, as defined in § 45a‐604(5). That designation 

shall be effective for a period of 1 year.

The standby guardian’s authority ends when the specified contingency no longer exists or after 1 year, whichever is 

sooner. 

Withdrawing Guardianship 

Citation: Ann. Stat. § 45a-624f

The principal may revoke a designation of a standby guardian at any time by written revocation and notification of 

the revocation to the standby guardian. 

Delaware

Who Can Nominate a Standby Guardian 

Citation: Ann. Code Tit. 13, § 2365

Any parent, custodian, or guardian may petition the family court for a standby guardianship order regarding a child 

 for whom they have been given legal responsibility. 

How to Establish a Standby Guardian 

Citation: Ann. Code Tit. 13, §§ 2363; 2367(c)-(d)

A petition for standby guardianship may be filed in the family court of any of the following counties: 

• The county in which one natural parent resides

• The county in which a legal guardian of the child resides

• The county in which one child resides 

The court must find, prior to the granting of an order for standby guardianship, that there is a significant risk that the 

parent, legal custodian, or guardian will die, become incapacitated, or become debilitated as a result of a chronic 

condition or terminal illness within 2 years of the filing of the petition as certified by an attending physician.

If an order for standby guardianship is granted, the order shall determine the triggering event for the standby 

guardianship by specifying whether: 

• The authority of the standby guardian is effective on the receipt of a determination of the petitioner’s 

incapacity or debilitation, or on the receipt of the certificate of the petitioner’s death.

• The authority of the standby guardian may become effective earlier on written consent of the petitioner.
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How Standby Authority Is Activated 

Citation: Ann. Code Tit. 13, § 2368(a)-(d)

Upon the occurrence of a triggering event set forth in an order appointing a standby guardian, the appointed 

standby guardian shall be empowered to assume the standby guardian duties immediately.

If the triggering event is the incapacity or debilitation of the parent, legal custodian, or guardian, the attending 

physician shall provide a copy of that physician’s determination to the appointed standby guardian if the guardian’s 

identity is known to the attending physician.

Within 30 days following the assumption of guardianship duties, the standby guardian shall petition the court 

for confirmation. The confirmation petition shall include a determination of incapacity or debilitation or a death 

certificate, as appropriate. Absent a judicial finding or determination of unfitness, the standby guardian’s power and 

authority shall commence immediately upon the occurrence of the triggering event and shall continue unimpeded 

until the court may hear the standby guardian’s petition for confirmation.

The court shall confirm an appointed standby guardian previously named and otherwise qualified to serve as 

guardian unless there is a judicial determination of unfitness with regard to the appointed standby guardian. 

Involvement of the Noncustodial Parent 

Citation: Ann. Code Tit. 13, § 2367(a)-(b)

When the parent is the person suffering from a progressive chronic condition or terminal illness, prior to granting an 

order for standby guardianship, the court shall find that the standby guardianship is in the child’s best interests, and:

• The child would be dependent, neglected, or abused in the care of the other parent. 

• The other parent of the child is deceased.

• The other parent’s parental rights have been terminated. 

• The other parent consents to the appointment of a standby guardian.

When the legal custodian or guardian is the person suffering from a progressive chronic condition or terminal illness, 

prior to granting an order for standby guardianship, the court shall find that the standby guardianship is in the child’s 

best interests, and as to each parent:

• The child remains dependent, neglected, or abused in the parent’s care.

• The parent of the child is deceased.

• The parent’s parental rights have been terminated.

• The parent consents to the appointment of a standby guardian.

Authority Relationship of the Parent and the Standby 

Citation: Ann. Code Tit. 13, §§ 2361; 2368(f)

A standby guardianship enables a parent, custodian, or guardian suffering from a progressive chronic condition 

or a terminal illness to make plans for the permanent future care or the interim care of a child without terminating 

parental or legal rights. 

Commencement of the duties of the standby guardian shall confer upon the appointed standby guardian shared 

authority with the parent, legal custodian, or guardian of the minor child unless the petition states otherwise. 
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Withdrawing Guardianship 

Citation: Ann. Code Tit. 13, § 2368(e), (g), (h)

A standby guardian may decline appointment at any time before the assumption of that standby guardian’s duties by 

filing a written statement to that effect with the court, with notice to be provided to the petitioner and to the minor 

child if the latter is age 14 or older.

A parent, legal custodian, or guardian may revoke a standby guardianship by executing a written revocation, 

filing it with the court where the petition was filed, and promptly notifying the appointed standby guardian of the 

revocation.

A person who is judicially appointed as a standby guardian may renounce the appointment at any time by:

• Executing a written renunciation

• Filing the renunciation with the court

• Promptly notifying in writing the parent, legal custodian, or legal guardian of the renunciation

District of Columbia

Who Can Nominate a Standby Guardian 

Citation: Ann. Code § 16-4802

A custodial parent, including a person other than a parent who has been awarded custody or guardianship of the 

child by a court, may be a designator of a standby guardian when he or she has been diagnosed with a chronic 

condition caused by injury, disease, or illness from which, to a reasonable degree of probability, the designator may 

 not recover. 

How to Establish a Standby Guardian 

Citation: Ann. Code §§ 16-4803; 16-4807

A designator may designate a standby guardian at any time. The designation shall be in writing and signed and 

dated by the designator or the designator’s proxy in the presence of two witnesses who shall be over age 18 and 

who cannot be the standby guardian. 

The standby guardian shall sign the executed designation to indicate acceptance of the standby guardianship. A 

petition must be filed with the court to approve the designation. 

How Standby Authority Is Activated 

Citation: Ann. Code §§ 16-4802; 16-4805; 16-4806; 16-4807 

The standby guardian’s authority becomes effective upon the occurrence of a triggering event, which includes: 

• The designator’s written acknowledgment of debilitation and consent to commencement of the standby 

guardianship 

• The designator’s incapacity as determined by an attending clinician 

• The designator’s death 

If the court has not approved the designation prior to a triggering event, the standby guardian has 90 days to file for 

legal custody. 
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Involvement of the Noncustodial Parent 

Citation: Ann. Code § 16-4806

The court shall presume that approval of a standby guardian petition order is in the best interests of the child if:

• The designator is the sole surviving parent.

• The parental rights of any noncustodial parent have been terminated or relinquished.

• All parties consent to the designation. 

An order approving the standby guardianship shall not be entered without a hearing if: 

• A noncustodial parent requests a hearing within 20 days of the date the noncustodial parent receives notice 

of the filing of the petition. 

• There is other litigation pending regarding custody of the child. 

Authority Relationship of the Parent and the Standby 

Citation: Ann. Code § 16-4804

Upon the occurrence of a triggering event, the standby guardian shall have authority to act and shall assume the 

rights, powers, duties, and obligations existing under law between a legal custodian and a child. The designator 

shall retain concurrent authority over the child as the designator’s health permits.

If a clinician determines that the designator is no longer incapacitated, or the designator withdraws the consent that 

acknowledged debilitation, the standby guardian shall no longer have authority to act as the child’s legal custodian. 

The designation of a standby guardian does not extinguish or limit any rights, powers, duties, or obligations of 

the parent, legal custodian, or legal guardian, or the rights of any other individual with parental or custodial rights 

existing at the time of the designation. The standby guardianship shall be construed to enable the designator to 

plan for the future care of a child without terminating parental or legal rights, and to give the standby guardian the 

authority to act in a manner consistent with the known wishes of the designator regarding the care, custody, and 

support of the minor child.

The commencement of the standby guardian’s authority to act shall not divest the designator of any parental rights. 

A standby guardian shall assure the designator frequent and continuing contact with and physical access to the child 

and, to the greatest extent possible, the involvement of the designator in decision‐making on behalf of the child. 

Withdrawing Guardianship 

Citation: Ann. Code § 16-4810

The authority of the standby guardian may be revoked by the designator by filing a notice of revocation with the 

court. 

An executed designation that has not been activated because a triggering event has not occurred or a petition has 

not been filed may be revoked by the designator or declined by the prospective standby guardian by notifying the 

other party in writing. A designation may also be revoked by the execution of a subsequent inconsistent designation. 

Failure of the standby guardian to file a certificate of death within 90 days of a designator’s death shall be grounds 

for the court to rescind the authority of the standby guardian. 

Florida

Who Can Nominate a Standby Guardian 

Citation: Ann. Stat. § 744.3046

Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person 

 or property or both of the parent’s minor child. 
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How to Establish a Standby Guardian 

Citation: Ann. Stat. § 744.3046

The preneed guardian is nominated by making a written declaration that names the guardian to serve if the minor’s 

last surviving parent becomes incapacitated or dies. An alternate to the guardian may also be nominated to act if the 

designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the 

death of the last surviving parent of the minor.

The written declaration must reasonably identify the designated preneed guardian and must be signed by the 

parents in the presence of at least two attesting witnesses present at the same time. The written declaration must 

also provide the full name as it appears on the birth certificate or as ordered by a court, date of birth, and Social 

Security number, if any, for each minor child.

The parent making the declaration must file the declaration with the clerk of the court. 

How Standby Authority Is Activated 

Citation: Ann. Stat. § 744.3046

When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the 

last surviving parent is filed, the clerk shall produce the declaration. Production of the declaration in a proceeding to 

determine incapacity of the last surviving parent, or in a proceeding to appoint a guardian upon the death of the last 

surviving parent, constitutes a rebuttable presumption that the designated preneed guardian is entitled to serve as 

guardian. The court is not bound to appoint the designated preneed guardian if the designated preneed guardian is 

found to be unqualified to serve as guardian.

Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of 

appointment. If the court finds the preneed guardian to be qualified to serve as guardian, appointment of the 

guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with § 744.347 and shall 

file a bond, if the court requires a bond. Letters of guardianship must then be issued in the manner provided in § 

744.345. 

Involvement of the Noncustodial Parent 

Citation: Ann. Stat. § 744.3046

Both parents or the surviving parent must consent. 

Authority Relationship of the Parent and the Standby 

Citation: Ann. Stat. § 744.3046

The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity of the last 

surviving parent or the death of the last surviving parent. 

Withdrawing Guardianship 

Citation: Ann. Stat. § 744.3046

If the preneed guardian refuses to serve, a written declaration appointing an alternate preneed guardian constitutes 

a rebuttable presumption that the alternate preneed guardian is entitled to serve as guardian. The court is not 

bound to appoint the alternate preneed guardian if the alternate preneed guardian is found to be unqualified to 

serve as guardian. 
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Georgia

Who Can Nominate a Standby Guardian 

Citation: Ann. Code § 29-2-9 

A standby guardian may be named by a ‘designating individual,’ which includes: 

• A parent who has physical custody of the child and whose rights have not been terminated 

 • A guardian of the child 

How to Establish a Standby Guardian 

Citation: Ann. Code §§ 29-2-10; 29-2-11 

A designating individual may designate an individual to serve as standby guardian of a minor upon the health 

determination being made. 

The designation must be in writing and signed by the designating individual or by some other individual in the 

designating individual’s presence and at the designating individual’s express direction. The designation shall be 

attested to and subscribed by two or more competent witnesses. Neither the witness nor an individual signing on 

behalf of the designating individual may be named the standby guardian. 

A form for the designation is provided in § 29‐2‐11. 

How Standby Authority Is Activated 

Citation: Ann. Code §§ 29-2-10; 29-2-13 

Upon the health determination being made and without the necessity of any judicial intervention, the standby 

guardian shall assume all the rights, duties, and responsibilities of guardianship of the person of the minor. At that 

time, the standby guardian shall file with the court a notice of the standby guardianship with a copy of the standby 

guardianship designation and the health determination attached. 

Within 120 days of the health determination being made, the standby guardian shall file, with the probate 

court in the county of domicile of the minor, a petition seeking temporary guardianship of the minor. Except as 

otherwise provided, a standby guardianship shall automatically terminate 120 days after the making of the health 

determination unless the standby guardian has filed a petition for temporary guardianship of the minor, in which 

case the standby guardianship shall remain in effect, unless otherwise revoked, until the petition is ruled upon. 

Involvement of the Noncustodial Parent 

Citation: Ann. Code §§ 29-2-10; 29-2-11 

No proceedings under this part shall relieve any parent, custodial or noncustodial, of a duty to support the minor.

With regard to a parent of the minor who is not the designating individual, the designation shall state, to the extent 

known, that parent’s name and address and whether that parent had his or her parental rights terminated, and 

whether that parent cannot be located or is deceased. 

Authority Relationship of the Parent and the Standby 

Citation: Ann. Code § 29-2-10

Consistent with the designating individual’s physical or mental condition or health, the designating individual may 

confer with the standby guardian in decision‐making concerning the care and welfare of the minor. 
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Withdrawing Guardianship 

Citation: Ann. Code § 29-2-12 

At any time before the health determination is made, a standby guardianship may be revoked without notice to 

anyone by destruction or obliteration of the designation with an intent to revoke, or by a written revocation signed 

by the designating individual and attested to by two or more competent witnesses. 

After the health determination has been made, the standby guardianship may be revoked by the designating 

individual by filing a notice of such revocation with the court in which the standby guardianship was filed and by 

mailing a copy of the notice of revocation to the standby guardian. 

Guam 

 These issues are not addressed in statutes reviewed. 

Hawaii

Who Can Nominate a Standby Guardian 

Citation: Rev. Stat. § 560:5-202

 A parent may appoint a guardian for any minor child. 

How to Establish a Standby Guardian 

Citation: Rev. Stat. § 560:5-202

A parent may appoint a guardian in a will or another signed writing. Before the appointment becomes effective, the 

court may confirm the parent’s selection of a guardian and terminate the rights of others to object upon: 

• Petition of an appointing parent 

• A finding that the appointing parent will likely become unable to care for the child within 2 years 

• Notice, as provided in § 560:5‐205(a), has been given 

How Standby Authority Is Activated 

Citation: Rev. Stat. § 560:5-202 

The appointment of a guardian becomes effective upon the earlier of: 

• The appointing parent’s death 

• An adjudication that the parent is an incapacitated person 

• A written determination by a physician who has examined the parent that states that the parent is no longer 

able to care for the child 

The guardian becomes eligible to act upon the filing of an acceptance of appointment. This acceptance must be 

filed within 30 days after the guardian’s appointment becomes effective. The guardian shall: 

• File the acceptance of appointment and a copy of the will with the court or, in the case of another appointing 

instrument, file the acceptance of appointment and the appointing instrument with the court 

• Give written notice of the acceptance of appointment to the appointing parent, if living, the minor, if the 

minor has attained 14 years of age, and a person other than the parent having care and custody of the minor 
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Involvement of the Noncustodial Parent 

Citation: Rev. Stat. § 560:5-203

Until the court has confirmed an appointee under § 560:5‐202, a minor who is the subject of an appointment by a 

parent and who is age 14 or older, the child’s other parent, or a person other than a parent or guardian having care 

or custody of the minor, may prevent or terminate the appointment at any time by filing a written objection in the 

court in which the appointing instrument is filed and giving notice of the objection to the guardian and any other 

persons entitled to notice of the acceptance of the appointment. 

Authority Relationship of the Parent and the Standby 

Citation: Rev. Stat. § 560:5-202

The appointment may specify the desired limitations on the powers to be given to the guardian. The appointment of 

a guardian by a parent does not supersede the parental rights of either parent. 

Withdrawing Guardianship 

Citation: Rev. Stat. § 560:5-202

The appointing parent may revoke or amend the appointment before confirmation by the court. 

The authority of a guardian appointed under this section terminates upon the appointment of a guardian by the 

court or the giving of written notice to the guardian of the filing of an objection pursuant to § 560:5‐203, whichever 

occurs first. 

Idaho 

 These issues are not addressed in statutes reviewed. 

Illinois

Who Can Nominate a Standby Guardian 

Citation: Comp. Stat. Ch. 755, § 5/11-5.3

A parent, adoptive parent, adjudicated parent whose rights have not been terminated, or legal guardian may 

 designate a standby guardian. 

How to Establish a Standby Guardian 

Citation: Comp. Stat. Ch. 755, §§ 5/11-5.3; 5/11-10.1

A standby guardian may be designated in any writing, including a will. The designation must be witnessed by two or 

more credible witnesses who are at least age 18, neither of whom is the person designated as the standby guardian. 

Upon the filing of a petition, the court may appoint a standby guardian. Children age 14 and older must be notified 

of the hearing.

The standby guardian must take an oath or affirmation that he or she will faithfully discharge the duties of 

guardianship and may be required to file a bond once duties are assumed. 
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How Standby Authority Is Activated 

Citation: Comp. Stat. Ch. 755, § 5/11-13.1

The standby guardian shall not have any duties or authority to act until the standby guardian receives knowledge of: 

• The death or consent of the minor’s parent or parents or guardian 

• The inability of the minor’s parent or parents or guardian to make and carry out day‐to‐day child care 

decisions concerning the minor 

When the triggering event has occurred, the standby guardian has 60 days to file confirming documents and petition 

the court for guardianship. 

Involvement of the Noncustodial Parent 

Citation: Comp. Stat. Ch. 755, § 5/11-5.3

The designation of a standby guardian does not affect the rights of the other parent of the child. 

The court lacks jurisdiction to proceed on a petition to appoint a guardian if the minor has a living, adoptive, or 

adjudicated parent whose parental rights have not been terminated, and whose whereabouts are known, and who is 

willing to assume day‐to‐day care of the child, unless the parent consents or fails to object after receiving notice of 

the petition. 

Authority Relationship of the Parent and the Standby 

Citation: Comp. Stat. Ch. 755, § 5/11-13.1

Once the guardianship has been activated, the standby guardian assumes all duties as guardian of the minor. 

Withdrawing Guardianship 

Citation: Comp. Stat. Ch. 755, § 5/11-13.1

The authority of the standby guardian may be limited or terminated by a court of competent jurisdiction. 

Indiana 

 These issues are not addressed in statutes reviewed. 

Iowa

Who Can Nominate a Standby Guardian 

Citation: Ann. Stat. §§ 633.560; 633.591A

A petition for the appointment of a guardian on a standby basis may be filed by any person under the same 

procedure and requirements as provided in §§ 633.591 to 633.597 for appointment of standby conservator.

 A person having physical and legal custody of a minor may petition for appointment of standby conservator. 

How to Establish a Standby Guardian 

Citation: Ann. Stat. §§ 633.591A; 633.571

A verified petition must be filed with the court. The petition shall be acted upon by the court only when an event 

specified in the petition has occurred. 

The court will consider the preference of a child age 14 or older. 

How Standby Authority Is Activated 

Citation: Ann. Stat. § 633.595

Upon a triggering event, confirming documents must be filed with the court. A hearing will be conducted to appoint 

the standby guardian. 
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Involvement of the Noncustodial Parent

This issue is not addressed in the statutes reviewed. 

Authority Relationship of the Parent and the Standby 

Citation: Ann. Stat. § 633.597

The powers and duties of such a conservator shall be the same as those of a conservator appointed in response to 

any of the other petitions authorized in the probate code. 

Withdrawing Guardianship 

Citation: Ann. Stat. § 633.594

The petition may be revoked by the petitioner at any time before appointment of a conservator by the court, 

provided that the petitioner is of sound mind. Revocation shall be accomplished by the destruction of the petition by 

the petitioner, or by the execution of an acknowledged instrument of revocation. If the petition has been deposited 

with the clerk, the revocation may also be deposited there. 

Kansas

 These issues are not addressed in statutes reviewed. 

Kentucky

 These issues are not addressed in statutes reviewed. 

Louisiana

 These issues are not addressed in statutes reviewed. 

Maine

 These issues are not addressed in statutes reviewed. 

Maryland

Who Can Nominate a Standby Guardian 

Citation: Ann. Code, Est. & Trusts § 13-903

The parent may file a petition for appointment of a standby guardian. Each person having parental rights over the 

 minor must join in the petition. 
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How to Establish a Standby Guardian 

Citation: Ann. Code, Est. & Trusts §§ 13-903; 13-904

The petition for the judicial appointment of a standby guardian shall state: 

• The duties of the standby guardian 

• Whether the authority of the standby guardian is to become effective on the petitioner’s incapacity or death, 

whichever occurs first 

• That there is a significant risk that the petitioner will become incapacitated or die within 2 years of the filing of 

the petition and the basis for this statement 

If the court finds that there is a significant risk that the petitioner will become incapacitated or die within 2 years 

of the filing of the petition and that the interests of the minor will be promoted by the appointment of a standby 

guardian, the court shall issue a decree accordingly.

A parent may also designate a standby guardian by means of a written designation that is signed in the presence 

of two witnesses who are at least age 18, neither of whom is the standby guardian, and signed by the standby 

guardian. The written designation shall identify the parent, the minor, and the person designated to be the standby 

guardian, state the duties of the standby guardian, and indicate that the parent intends for the standby guardian to 

become the minor’s guardian in the event the parent either:

• Becomes incapacitated 

• Becomes debilitated and consents to the beginning of the standby guardian’s authority

How Standby Authority Is Activated 

Citation: Ann. Code, Est. & Trusts §§ 13-903; 13-904

The standby guardian’s authority becomes effective at: 

• The parent’s death 

• The parent’s incapacity 

• On receipt of the written consent of the parent 

If the petition to appoint has already been approved, the standby guardian has 90 days after the parent’s death or 

incapacity to file confirming documents with the court. 

The authority of the standby guardian under a written designation shall begin on the standby guardian’s receipt of:

• A copy of a determination of debilitation under § 13‐906 of this subtitle

• A copy of the parent’s written consent to the beginning of the standby guardianship, signed by the parent in 

the presence of two witnesses who are at least age 18, neither of whom is the standby guardian, and signed 

by the standby guardian

• A copy of the birth certificate for each child for whom the standby guardian is designated 

The standby guardian shall file a petition for judicial appointment within 180 days of the date of the beginning of the 

standby guardianship under this section. 

Involvement of the Noncustodial Parent 

Citation: Ann. Code, Est. & Trusts § 13-903

Any person with parental rights over the minor must join in the petition to appoint a standby guardian. If a person 

with parental rights cannot be located after reasonable efforts have been made, the court may proceed to appoint a 

standby guardian. 

Authority Relationship of the Parent and the Standby 

Citation: Ann. Code, Est. & Trusts § 13-907

The standby guardian’s authority is limited and does not divest the parent of any parental or guardianship rights. 
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Withdrawing Guardianship 

Citation: Ann. Code, Est. & Trusts §§ 13-903; 13-904

Before the petition is filed, the parent may notify the standby guardian verbally or in writing. After the petition has 

been granted, the parent must file a written revocation with the court and notify the standby guardian. 

The standby guardian may renounce an appointment at any time before assuming authority by filing a written 

renunciation with the court and notifying the parent in writing. 

Massachusetts 

Who Can Nominate a Standby Guardian 

Citation: Ann. Laws Ch. 190B, § 5-202

A parent may appoint a guardian for any minor child the parent has or may have in the future. A guardian may 

 appoint a guardian for any minor child for whom the guardian serves. 

How to Establish a Standby Guardian 

Citation: Ann. Laws Ch. 190B, §§ 5-202; 5-203

A parent or guardian, by will or other writing signed by the parent or guardian and attested by at least two 

witnesses, may appoint a guardian for his or her minor child, may revoke or amend the appointment, and may 

specify any desired limitations on the powers to be granted to the guardian.

Upon petition of an appointing parent or guardian, upon finding that the appointing parent or guardian will likely 

become unable to care for the minor within 2 years or less, and after notice as provided in § 5‐206(b), the court, 

before the appointment becomes effective, may confirm the parent’s or guardian’s selection of a guardian and 

terminate the rights of others under § 5‐203.

The minor child age 14 or older who is the subject of a parental appointment may prevent the appointment or cause 

it to terminate by filing in the court in which the appointing instrument is filed a written objection to the appointment 

before it is accepted or within 30 days after receiving notice of its acceptance. 

How Standby Authority Is Activated 

Citation: Ann. Laws Ch. 190B, § 5-202

The appointment of a guardian becomes effective on the first to occur of the appointing parent’s or guardian’s 

death, an adjudication that the parent or guardian is an incapacitated person, or a written determination by a 

physician who has examined the parent or guardian that the parent or guardian is no longer able to care for the 

minor unless the minor is in the care or custody of a person other than a parent.

Within 30 days after the appointment becomes effective, a guardian shall:

• File a notice of acceptance of appointment and a copy of the will or other nominating instrument with 

the court of the county in which the will was or could be probated or, in the case of another nominating 

instrument, with the court of the county in which the minor resides

• Unless the appointment was previously confirmed by the court, petition the court for confirmation of the 

appointment

Involvement of the Noncustodial Parent 

Citation: Ann. Laws Ch. 190B, § 5-203

The child’s other parent, if that parent’s parental rights have not been terminated, may prevent the appointment 

or cause it to terminate by filing in the court in which the appointing instrument is filed a written objection to the 

appointment before it is accepted or within 30 days after receiving notice of its acceptance. 
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Authority Relationship of the Parent and the Standby 

Citation: Ann. Laws Ch. 190B, § 5-202

The parental appointment of a guardian shall not supersede the parental rights of either parent. If both parents are 

dead or have been adjudged incapacitated persons, an appointment by the last parent who dies or was adjudged 

incapacitated has priority. 

Withdrawing Guardianship 

Citation: Ann. Laws Ch. 190B, § 5-202

The authority of a guardian appointed under this section terminates upon the first to occur of the appointment of a 

guardian by the court, the revocation of the appointment by the appointing parent or guardian, or the filing of an 

objection pursuant to § 5‐203. 

Michigan

Who Can Nominate a Standby Guardian 

Citation: Comp. Laws § 700.5205

 The court may appoint a limited guardian for an unmarried minor upon the petition of the minor’s parent or parents. 

How to Establish a Standby Guardian 

Citation: Comp. Laws § 700.5205

The court may appoint a limited guardian for an unmarried minor upon the petition of the minor’s parent or parents 

if all of the following requirements are met:

• The parents with custody of the minor consent or, in the case of only one parent having custody of the minor, 

the sole parent consents to the appointment of a limited guardian.

• The parent or parents voluntarily consent to the suspension of their parental rights. 

• The court approves a limited guardianship placement plan agreed to by both of the following parties:

» The parents with custody of the minor or, in the case of only one parent having custody of the minor, the 

sole parent who has custody of the minor

» The person or persons whom the court will appoint as the minor’s limited guardian

How Standby Authority Is Activated 

Citation: Comp. Laws § 700.5205

A minor’s parent or parents who desire to have the court appoint a limited guardian for that minor and the person or 

persons who desire to be appointed limited guardian for that minor must develop a limited guardianship placement 

plan, using a form prescribed by the State court administrator. A limited guardianship placement plan form must 

include a notice that informs a parent who is a party to the plan that substantial failure to comply with the plan 

without good cause may result in the termination of the parent’s parental rights.

The proposed limited guardianship placement plan shall be attached to the petition requesting the court to appoint 

a limited guardian. The limited guardianship placement plan shall include provisions concerning all of the following: 

• The reason the parent or parents are requesting the court to appoint a limited guardian for the minor

• Parenting time and contact with the minor by his or her parent or parents sufficient to maintain a parent and 

child relationship 

• The duration of the limited guardianship

• Financial support for the minor

• Any other provisions that the parties agree to include in the plan
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Involvement of the Noncustodial Parent

This issue is not addressed in the statutes reviewed. 

Authority Relationship of the Parent and the Standby 

Citation: Comp. Laws §§ 700.5205(2)(b); 5206(4)

The limited guardianship placement plan shall provide for parenting time and contact with the minor by his or her 

parent or parents sufficient to maintain a parent and child relationship.

A limited guardian appointed under this section has all of the powers and duties enumerated in § 5215 except that 

a minor’s limited guardian shall not consent to marriage or adoption of the minor ward or to the release of the minor 

ward for adoption. 

Withdrawing Guardianship 

Citation: Comp. Laws § 700.5206(3)

The voluntary suspension of parental rights under § 5205 does not prevent the parent or parents from filing a 

petition to terminate the limited guardianship at any time as provided in § 5208. Appointment of a limited guardian 

under this section is a continuing appointment. 

Minnesota 

Who Can Nominate a Standby Guardian 

Citation: Ann. Stat. §§ 257B.03; 257B.05

A parent with legal and physical custody or a legal custodian may designate a standby or temporary custodian. 

If a triggering event has not occurred, only a custodian or legal guardian may file a petition with the court. If a 

 triggering event has occurred, the standby guardian may file. 

How to Establish a Standby Guardian 

Citation: Ann. Stat. §§ 257B.04; 257B.05

The written designation must identify the designator, the children, the other parent, if any, the standby guardian, 

and the triggering events. It must include the signed consent of the standby guardian and the other parent, or a 

statement why the other parent’s consent is not required. 

The designation must be signed by the designator in the presence of two witnesses who are age 18 or older and not 

otherwise named in the designation. The witnesses must also sign the declaration. 

Approval without a hearing is permitted if both parents consent to the designation, or there is only one surviving 

parent. A hearing is required in other cases. An optional designation form is provided in the statute. 

How Standby Authority Is Activated 

Citation: Ann. Stat. § 257B.06

The standby custodian’s authority commences upon a triggering event, such as a determination of incapacity or a 

determination of physical debilitation plus consent. If the petition is approved before the triggering event, no further 

court action is required. 

If a designation has been made but not yet approved by the court, the standby custodian has 60 days from the 

triggering event to file confirming documents and petition for approval. If the parent dies, the standby custodian 

shall be appointed permanent guardian without additional petition. 
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Involvement of the Noncustodial Parent 

Citation: Ann. Stat. § 257B.03

Consent to the designation is required unless the whereabouts of the parent are unknown, parental rights have been 

terminated, or the parent is unwilling and unable to care for the child. 

Authority Relationship of the Parent and the Standby 

Citation: Ann. Stat. § 257B.06

The commencement of the standby custodian’s authority does not itself divest the designator of any parental rights 

but confers on the standby custodian concurrent or shared custody of the child. 

The standby custodian shall ensure frequent and continuing contact with and physical access by the parent with the 

child and shall ensure the involvement of the parents, to the greatest extent possible, in decision‐making on behalf 

of the child. 

The standby custodian’s authority becomes inactive upon the attending physician’s written certification that the 

parent is restored to health. 

Withdrawing Guardianship 

Citation: Ann. Stat. § 257B.07

Before the petition has been filed with the court, the designator may revoke the appointment of a standby custodian 

by destroying the designation and notifying the standby custodian. After a petition has been filed, the designator 

must file a written revocation with the court and notify the standby custodian in writing. 

Mississippi 

 These issues are not addressed in statutes reviewed. 

Missouri

Who Can Nominate a Standby Guardian 

Citation: Ann. Stat. § 475.046 

A custodial parent may designate a person to act as standby guardian of a minor.

Except to the extent determined by the court to be inconsistent with the provisions of this section or as expressly 

provided in this section, the laws applicable to guardianship proceedings shall apply to all proceedings under this 

 section. 
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How to Establish a Standby Guardian 

Citation: Ann. Stat. § 475.046 

The designation of a standby guardian may be made in a will that complies with the requirements of § 474.320 or 

by a separate written instrument that is dated and is either duly executed and acknowledged by the custodial parent 

or is signed by the custodial parent in the presence of at least two disinterested witnesses. If the custodial parent 

executes more than one document designating a standby guardian and there is a conflict between the documents as 

to the person designated, the document bearing the latest date shall control.

If a custodial parent who has designated a standby guardian is or becomes seriously ill, the custodial parent or 

the person designated as standby guardian may file a petition in the probate division of the circuit court of the 

county that would be of proper venue for the appointment of a guardian of the minor seeking appointment of the 

designated person as standby guardian. A copy of the will or written instrument designating the standby guardian 

and a consent to act as standby guardian signed by the person designated shall be filed with the petition. The 

petition shall state:

• The name, age, domicile, actual place of residence, and mailing address of the minor

• The name and address of the custodial parent and the designated standby guardian

• The name and address of each parent of the minor and whether that parent is living or dead

• The name and address of the spouse, if applicable, and the names, ages, and addresses of all living children 

of the minor 

• If the person for whom appointment of a standby guardian is sought has been adjudicated incapacitated, the 

date of adjudication and the name and address of the court that entered the judgment

• The reasons why the appointment of a standby guardian is sought

How Standby Authority Is Activated 

Citation: Ann. Stat. § 475.046 

The court shall determine appointment of a standby guardian in accordance with the best interests of the minor after 

considering all relevant factors, including:

• Whether there is a parent other than the custodial parent and, if so, whether the other parent is willing, able, 

and fit to assume the duties of a parent

• The suitability of a person nominated by the minor if he or she is able to communicate a reasonable choice

• The desirability of providing arrangements for the care, custody, and control of the minor that shall minimize 

stress and disruption and avoid his or her placement in foster or similar care pending appointment of a 

guardian if the custodial parent is adjudicated incapacitated or dies

The authority of a person to act as standby guardian for a minor shall take effect only as follows:

• If the person has previously been appointed by the court as standby guardian, upon the granting of letters of 

standby guardianship to that person

• If the person has not previously been appointed as standby guardian, either because a petition for 

appointment has not been filed or because the proceedings are still pending, upon the first to occur of the 

following:

» The duly executed consent of the custodial parent

» Entry of an order adjudicating the custodial parent to be incapacitated

» The death of the custodial parent

The person shall, within 10 days after he or she begins to act as standby guardian, notify the court in writing of that 

fact. The court may grant letters of standby guardianship to the person or, if the court deems it advisable, conduct a 

hearing to determine the propriety of the person having begun, and continuing, to act as standby guardian and the 

propriety of issuing letters of standby guardianship to the person. 
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Involvement of the Noncustodial Parent

This issue is not addressed in the statutes reviewed. 

Authority Relationship of the Parent and the Standby 

Citation: Ann. Stat. § 475.046 

Nothing in this section shall be construed to:

• Deprive a parent of his or her legal rights with respect to a child of that parent, including court‐ordered 

visitation with the child, nor to authorize a grant of authority to a standby guardian that would supersede any 

such rights

• Relieve a parent of his or her legal obligations or duties to a child of that parent, including a duty to support 

the child in accordance with a court or administrative order

Withdrawing Guardianship 

Citation: Ann. Stat. § 475.083 

The authority of a guardian terminates:

• When a minor ward becomes age 18

• Upon an adjudication that an incapacitated or disabled person has been restored to his or her capacity or 

ability

• Upon revocation of the letters of the guardian

• Upon the acceptance by the court of the resignation of the guardian

• Upon the death of the ward

• Upon an order of court terminating the guardianship

Montana

 These issues are not addressed in statutes reviewed. 

Nebraska

Who Can Nominate a Standby Guardian 

Citation: Rev. Stat. § 30-2608

 The court may appoint a standby guardian for a minor whose parent is chronically ill or near death. 

How to Establish a Standby Guardian 

Citation: Rev. Stat. §§ 30-2608; 30-2610

A petition must be filed and a hearing held before the court to appoint a guardian. 

The court shall appoint a person nominated by a minor who is age 14 or older, unless the court finds that the 

appointment is contrary to the minor’s best interests. 

How Standby Authority Is Activated 

Citation: Rev. Stat. § 30-2608

The standby guardian’s authority may take effect, if the minor is left without a remaining parent, upon: 

• The death of the parent 

• The mental incapacity of the parent 

• The physical debilitation and consent of the parent 
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Involvement of the Noncustodial Parent 

Citation: Rev. Stat. § 30-2608

A parent is preferred as a guardian. 

For a child born out of wedlock, the court also considers:

• The wishes of the deceased parent, as stated in a will 

• The surviving parent’s acknowledgment of paternity, payment of child support, and fitness as a parent

Authority Relationship of the Parent and the Standby 

Citation: Rev. Stat. § 30-2608

An appointment of a standby guardian does not suspend or terminate a parent’s parental rights. 

Withdrawing Guardianship

This issue is not addressed in the statutes reviewed. 

Nevada

Who Can Nominate a Standby Guardian 

Citation: Rev. Stat. § 159.205

 A parent may appoint a short‐term guardian for the child. 

How to Establish a Standby Guardian 

Citation: Rev. Stat. § 159.205

Except as otherwise provided in this section or § 127.045, a parent, without the approval of a court, may appoint in 

writing a short‐term guardianship for an unmarried minor child if the parent has legal custody of the minor child. 

The appointment of a short‐term guardianship is effective for a minor who is age 14 or older only if the minor 

provides written consent to the guardianship. 

How Standby Authority Is Activated 

Citation: Rev. Stat. § 159.205

The written instrument appointing a short‐term guardian becomes effective immediately upon execution and must 

include, without limitation: 

• The date on which the guardian is appointed 

• The names of the parent who appointed the guardian, the minor child for whom the guardian is appointed, 

and the person who is appointed as the guardian 

• The signature of the parent and the guardian in the presence of a notary public acknowledging the 

appointment of the guardian 

The short‐term guardian serves as guardian for 6 months, unless the written instrument appointing the guardian 

specifies a shorter term or specifies that the guardianship is to terminate upon the happening of an event that occurs 

sooner than 6 months. 

Only one written instrument appointing a short‐term guardian may be effective at any given time. 
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Involvement of the Noncustodial Parent 

Citation: Rev. Stat. § 159.205

The appointment of a short‐term guardian does not affect the rights of the other parent of the minor. 

A parent shall not appoint a short‐term guardian for a minor child if the minor child has another parent: 

• Whose parental rights have not been terminated 

• Whose whereabouts are known 

• Who is willing and able to make and carry out daily child care decisions concerning the minor 

• Who has not given written consent to the appointment 

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed. 

Withdrawing Guardianship 

Citation: Rev. Stat. § 159.205

The appointment of a short‐term guardian: 

• May be terminated by an instrument in writing signed by either parent if that parent has not been deprived of 

the legal custody of the minor 

• Can be terminated by any order of a court of competent jurisdiction 

New Hampshire

 These issues are not addressed in statutes reviewed. 

New Jersey

Who Can Nominate a Standby Guardian 

Citation: Ann. Stat. § 3B:12-72

 A parent or legal custodian may petition the court to appoint a standby guardian. 

How to Establish a Standby Guardian 

Citation: Ann. Stat. §§ 3B:12-72; 3B:12-74; 3B:12-77

A petition for the judicial appointment of a standby guardian of a minor child shall state: 

• The triggering event or events that shall cause the authority of the appointed standby guardian to become 

effective 

• That there is a significant risk that the parent or legal custodian will die, become incapacitated, or become 

debilitated as a result of a progressive chronic condition or a fatal illness 

• The name, address, and qualifications of the proposed standby guardian 

The parent or legal custodian may choose a standby guardian by means of a written designation that names the 

standby guardian in the event of the designator’s death, incapacity, or debilitation. The written designation shall 

reasonably identify the designator, the minor child, and the standby guardian. The written designation shall be 

signed by the designator in the presence of two witnesses who shall also sign the designation.

The designation shall state the triggering event by which the parent or legal custodian intends the designated 

standby guardianship of the minor child to be activated. An optional designation form is provided in the statute. 

Children who are age 14 or older must be notified and the court will consider their preference. 
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How Standby Authority Is Activated 

Citation: Ann. Stat. § 3B:12-73

Upon the occurrence of a triggering event, the standby guardian is empowered to immediately assume his or 

her duties. If the triggering event is the incapacity or debilitation of the parent or legal custodian, the attending 

physician shall provide a copy of his determination to the appointed standby guardian.

Within 60 days, the standby guardian must file a petition with the court for confirmation of guardianship. The 

confirmation petition shall include a determination of incapacity or debilitation or a death certificate, as appropriate. 

Involvement of the Noncustodial Parent 

Citation: Ann. Stat. § 3B:12-72

Notice of a hearing must be served to any parent who has parental rights within 30 days of filing the petition. If, after 

a diligent search, the noncustodial parent cannot be found, the court may proceed. 

No notice is required to a parent who is deceased or whose rights have been previously terminated. 

Authority Relationship of the Parent and the Standby 

Citation: Ann. Stat. §§ 3B:12-73; 3B:12-74

Commencement of the duties of the standby guardian shall confer upon the appointed standby guardian shared 

authority with the custodial parent or legal custodian of the minor child, unless the petition states otherwise. 

Appointment of a standby guardian shall not involuntarily deprive any parent of parental rights. 

Withdrawing Guardianship 

Citation: Ann. Stat. § 3B:12-73

A standby guardian may decline appointment at any time before the assumption of his or her duties by filing a 

written statement to that effect with the court, with notice to the petitioner and to the minor child if the latter is age 

14 or older. 

A parent or legal custodian may revoke a standby guardianship by executing a written revocation, filing it with the 

court where the petition was filed, and promptly notifying the appointed standby guardian of the revocation. 

An unwritten revocation may be considered by the court if the revocation can be proved by clear and convincing 

evidence submitted to the court. 

New Mexico

 These issues are not addressed in statutes reviewed. 

New York

Who Can Nominate a Standby Guardian 

Citation: Surrogate’s Crt. Proc. Act § 1726

A parent, legal guardian, or legal custodian may petition for the appointment of a standby guardian. The child’s 

 primary caretaker may petition when the parent, guardian, or custodian cannot be located. 
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How to Establish a Standby Guardian 

Citation: Surrogate’s Crt. Proc. Act §§ 1726; 1706

The petition must state: 

• Whether the authority of the standby guardian is to become effective upon the petitioner’s incapacity, death, 

or consent, whichever occurs first 

• That the petitioner suffers from either a progressively chronic illness or an irreversibly fatal illness, and 

the basis for such statement, such as the date and source of a medical diagnosis, without requiring the 

identification of the illness in question 

If the court finds that the petitioner suffers from a progressively chronic illness or an irreversibly fatal illness and 

that the interests of the child will be promoted by the appointment of a standby guardian, it must make a decree 

accordingly. 

A standby guardian may also be designated by a written designation, signed by the parent in the presence of two 

witnesses. An optional designation form is provided in the statute. 

The court will consider the preference of a child who is age 14 or older. If the youth is older than age 18, he or she 

shall consent to the appointment of a suitable guardian. 

How Standby Authority Is Activated 

Citation: Surrogate’s Crt. Proc. Act § 1726

The standby guardian’s authority commences upon receipt of a determination of the parent’s incapacity, certificate of 

the parent’s death, or the parent’s written consent. An attending physician must document the parent’s incapacity. 

A guardian by judicial decree has 90 days to file confirming documents. A guardian by written designation has 60 

days to file confirming documents and petition for appointment. 

Involvement of the Noncustodial Parent 

Citation: Surrogate’s Crt. Proc. Act § 1705

Notice of hearing is required to any parent living in a known residence in New York, unless the parent has 

abandoned the child, is deprived of civil rights, divorced from the custodial parent, incompetent, or otherwise 

judicially deprived of custody of the child. 

Authority Relationship of the Parent and the Standby 

Citation: Surrogate’s Crt. Proc. Act § 1726

The commencement of the standby guardian’s authority due to incapacity, debilitation, or consent shall not divest 

the parent of any parental rights, but shall confer upon the standby guardian concurrent authority with respect to the 

child. 
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Withdrawing Guardianship 

Citation: Surrogate’s Crt. Proc. Act § 1726

The petitioner may revoke a standby guardianship created by judicial appointment by executing a written 

revocation, filing it with the court that issued the decree, and promptly notifying the standby guardian of the 

revocation. 

A judicially appointed standby guardian may at any time before the commencement of his or her authority renounce 

the appointment by executing a written renunciation and filing it with the court that issued the decree, and promptly 

notifying the petitioner of the revocation. 

The parent may revoke a standby guardianship created by written designation: 

• By executing a subsequent designation of guardianship by petition to the court 

• In the case of a standby guardian whose authority becomes effective upon the death of the parent, by a 

subsequent designation of standby guardian set forth in a will of the parent 

• By notifying the standby guardian verbally or in writing or by any other act evidencing a specific intent to 

revoke the standby guardianship prior to the filing of a petition 

North Carolina

Who Can Nominate a Standby Guardian 

Citation: Gen. Stat. § 35A-1370

A parent, adoptive parent, or legal guardian who suffers from a progressive chronic or irreversibly fatal illness may 

 petition for the appointment of a standby guardian. 

How to Establish a Standby Guardian 

Citation: Gen. Stat. §§ 35A-1372; 35A-1373; 35A-1374

A petition for the judicial appointment of a standby guardian of a minor child shall: 

• Identify the petitioner, the minor child, and the person designated to be the standby guardian 

• State that the authority of the standby guardian is to become effective upon the petitioner’s death, incapacity, 

or debilitation, with the consent of the petitioner, or upon the petitioner’s signing of a written consent stating 

that the standby guardian’s authority is in effect, whichever occurs first 

• State that the petitioner suffers from a progressively chronic illness or an irreversible fatal illness, and the basis 

for such a statement, such as the date and source of a medical diagnosis, without requiring the identification 

of the illness in question 

A parent also may designate a standby guardian by means of a written designation, signed by the parent in the 

presence of two witnesses who are at least age 18, other than the standby guardian, who shall also sign the writing. 

Evidence is required at the hearing to determine whether the requirements of the statute have been satisfied. 

How Standby Authority Is Activated 

Citation: Gen. Stat. §§ 35A-1373; 35A-1374

The authority of the standby guardian commences upon the parent’s death, mental incapacity, physical debilitation 

plus consent, or written consent alone. An attending physician must document the parent’s incapacity or debilitation. 

The standby guardian must file confirming documents with the court within 90 days of the triggering event. If the 

guardianship is by written designation, the standby guardian must petition the court within 90 days for appointment 

as guardian. 
Standby Guardianship http://www.childwelfare.gov

Involvement of the Noncustodial Parent 

Citation: Gen. Stat. § 35A-1373

Notice to any biological or adoptive parent is required, along with a copy of the petition. The court may proceed if 

no complaint for custody of the child has been filed within 30 days. 

Authority Relationship of the Parent and the Standby 

Citation: Gen. Stat. § 35A-1377

The commencement of the standby guardian’s authority due to incapacity, debilitation, or written consent shall not 

itself divest the parent of any parental or guardianship rights, but shall confer upon the standby guardian concurrent 

authority with respect to the minor child. 

Withdrawing Guardianship 

Citation: Gen. Stat. §§ 35A-1373; 35A-1374; 35A-1376 

The petitioner may revoke a judicially created guardianship by executing a written revocation, filing it with the court, 

and notifying the standby guardian. 

The standby guardian may at any time before the commencement of the person’s authority renounce the 

appointment by executing a written renunciation, filing it with the court, and promptly providing the petitioner with a 

copy of the renunciation.

The parent may revoke a written designation at any time prior to commencement by notifying the standby guardian 

in writing. 

When the authority of the standby guardian is due to incapacity or debilitation, and the parent is subsequently 

restored to capacity or ability to care for the child, the authority of the standby guardian based on that incapacity or 

debilitation shall be suspended. 

North Dakota

Who Can Nominate a Standby Guardian 

Citation: Cent. Code § 30.1-26-04

A parent or a guardian of a minor, by a properly executed power of attorney, may delegate to another person, for a 

period not exceeding 6 months, any of the parent’s or guardian’s powers regarding care, custody, or property of the 

 minor child, except the power to consent to marriage or adoption of a minor ward. 

How to Establish a Standby Guardian

This issue is not addressed in the statutes reviewed. 

How Standby Authority Is Activated

This issue is not addressed in the statutes reviewed. 

Involvement of the Noncustodial Parent

This issue is not addressed in the statutes reviewed. 

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed. 

Withdrawing Guardianship 

This issue is not addressed in the statutes reviewed. 

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Northern Mariana Islands

 This issue is not addressed in the statutes reviewed. 

Ohio

Who Can Nominate a Standby Guardian 

Citation: Rev. Code § 1337.09

 A person may designate a guardian for his or her minor child by a properly executed durable power of attorney. 

How to Establish a Standby Guardian 

Citation: Rev. Code § 1337.09

In a durable power of attorney, a person may nominate the attorney in fact or any other person to be the guardian 

of the person, the estate, or both, of one or more of the person’s minor or incompetent adult children, whether born 

at the time of the execution of the durable power of attorney or afterward. The nomination is for consideration by 

a court if proceedings for the appointment of a guardian of the person, the estate, or both, of one or more of the 

person’s minor or incompetent adult children are commenced at a later time. 

The durable power of attorney that contains the nomination of a person to be the guardian of the person, the estate, 

or both of one or more of the principal’s minor or incompetent adult children may be filed with the probate court for 

safekeeping, and the probate court shall designate the nomination as the nomination of a standby guardian. 

How Standby Authority Is Activated 

Citation: Rev. Code § 1337.09

When a person designates another as the person’s attorney in fact by a power of attorney in writing, and the 

writing expressly states that the power of attorney shall become effective at a later time or upon the occurrence of 

a specified event, including, but not limited to, the disability, incapacity, or adjudged incompetency of the person, 

the attorney in fact may exercise the authority provided to the attorney in fact in the written instrument at the later 

time or upon the occurrence of the specified event, notwithstanding the later disability, incapacity, or adjudged 

incompetency of the person, and, unless the instrument states a time of termination, notwithstanding the lapse of 

time since its execution. 

Involvement of the Noncustodial Parent

This issue is not addressed in the statutes reviewed. 

Authority Relationship of the Parent and the Standby

This issue is not addressed in the statutes reviewed. 

Withdrawing Guardianship 

This issue is not addressed in the statutes reviewed. 

Oklahoma

 This issue is not addressed in the statutes reviewed. 
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Oregon

 This issue is not addressed in the statutes reviewed. 

Pennsylvania

Who Can Nominate a Standby Guardian 

Citation: Cons. Stat. Tit. 23, § 5611

 A custodial parent, legal custodian, or legal guardian may designate a standby guardian. 

How to Establish a Standby Guardian 

Citation: Cons. Stat. Tit. 23, §§ 5611; 5612

A standby guardian may be designated by a written designation that: 

• Identifies the person making the designation, the minor or minors, any other parent, the standby guardian, 

and the triggering event or events that will commence the guardianship 

• Has been signed by the designating person in the presence of two witnesses who are 18 years of age or older 

and not otherwise named in the designation, who shall also sign the designation 

Different standby guardians may be designated for different triggering events. 

A petition for court approval of a designation may be made at any time. If the triggering event has not yet occurred, 

only the designator may file the petition. If the triggering event has occurred already, the standby guardian may file 

the petition. 

A designation may be approved without a court hearing if there is only one parent. 

How Standby Authority Is Activated 

Citation: Cons. Stat. Tit. 23, §§ 5612; 5613

The standby guardian shall have authority to act as guardian upon the occurrence of a triggering event, including 

the parent’s death, incapacity, physical debilitation with consent, or written consent alone. 

If a designation has been made but the petition for approval of the designation has not been filed and a triggering 

event has occurred, the standby guardian shall have temporary legal authority to act as guardian of the minor 

without the direction of the court for a period of 60 days. The standby guardian shall within that period file a petition 

for approval in accordance with § 5612. 

The petition of the standby guardian shall contain one of the following: 

• A determination of the designator’s incapacity 

• A determination of the designator’s debilitation 

• The designator’s signed and dated consent 

• A copy of the designator’s death certificate 

If no petition is filed within the 60 days, the standby guardian shall lose all authority to act. If a petition has been 

filed but the court does not act upon it within the 60‐day period, the temporary legal authority to act as guardian 

shall continue until the court orders otherwise. 

Involvement of the Noncustodial Parent 

Citation: Cons. Stat. Tit. 23, § 5611

Consent of the other parent is required when the parent’s whereabouts are known, his or her parental rights have not 

been terminated, and the parent is willing and able to care for the child. 
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Authority Relationship of the Parent and the Standby 

Citation: Cons. Stat. Tit. 23, § 5613

The commencement of the standby guardian’s authority to act due to incapacity, debilitation and consent, or 

consent alone shall not itself divest the designator of any parental rights but shall confer upon the standby guardian 

concurrent or shared custody of the child. 

The commencement of the standby guardian’s authority to act as guardian due to the death of the designator shall 

not confer upon the standby guardian more than physical and legal custody. 

A standby guardian shall ensure frequent and continuing contact with the child and ensure the involvement of the 

parent, including, to the greatest extent possible, in decision‐making on behalf of the child. 

Withdrawing Guardianship 

Citation: Cons. Stat. Tit. 23, §§ 5613; 5614

If a licensed physician determines that the designator has regained capacity, the standby guardian’s authority that 

commenced on the occurrence of a triggering event shall become inactive, and the standby guardian shall return to 

having no authority. 

Prior to a petition being filed, the designator may revoke a standby guardianship by simple destruction of the 

designation and notification of the revocation to the standby guardian. After a petition has been filed, the 

designator may revoke a standby guardianship by: 

• Executing a written revocation

• Filing the revocation with the court 

• Notifying the persons named in the designation of the revocation in writing 

Regardless of whether a petition has been filed, an unwritten revocation may be considered by the court if it can be 

proven by clear and convincing evidence. 

Puerto Rico

 This issue is not addressed in the statutes reviewed. 

Rhode Island

 This issue is not addressed in the statutes reviewed. 

South Carolina

 This issue is not addressed in the statutes reviewed. 

South Dakota

 This issue is not addressed in the statutes reviewed. 
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Tennessee

Who Can Nominate a Standby Guardian 

Citation: Ann. Code § 34-6-302

The parent or parents of a minor child may delegate to any adult person residing in this State temporary care giving 

 authority regarding the child when hardship prevents the parent or parents from caring for the child. 

How to Establish a Standby Guardian 

Citation: Ann. Code §§ 34-6-302; 34-6-303

This authority may be delegated without the approval of a court by executing in writing a power of attorney for care 

of a minor child on a form provided by the Department of Children’s Services. Hardships may include but are not 

limited to:

• The serious illness or incarceration of a parent or legal guardian

• The physical or mental condition of the parent or legal guardian or the child is such that care and supervision 

of the child cannot be provided

• The loss or uninhabitability of the child’s home as the result of a natural disaster

The power of attorney for care of the minor child shall be signed and acknowledged before a notary public by the 

parent. 

The instrument providing for the power of attorney shall be executed by both parents, if both parents are living and 

have legal custody of the minor child, and shall state with specificity the details of the hardship preventing the parent 

from caring for the child. 

How Standby Authority Is Activated

This issue is not addressed in the statutes reviewed. 

Involvement of the Noncustodial Parent 

Citation: Ann. Code § 34-6-303

If only one parent has legal custody of the minor child, then that parent shall execute the instrument. The other 

parent must consent in writing to the appointment in the instrument, or the executing parent shall explain in the 

instrument why the consent cannot be obtained. If both parents do not execute the affidavit, then the executing 

parent shall send a copy of the instrument to the other parent by certified mail, return receipt requested, at the last 

known address of the other parent. 
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Authority Relationship of the Parent and the Standby 

Citation: Ann. Code §§ 34-6-304; 34-6-305; 34-6-307

Through the power of attorney for care of a minor child, the parent may authorize the caregiver to perform the 

following functions without limitation:

• Enroll the child in school and extracurricular activities

• Obtain medical, dental, and mental health treatment for the child

• Provide for the child’s food, lodging, housing, recreation, and travel

Nothing in this section shall be construed to limit the power of the parent to grant additional powers to the 

caregiver.

Except where limited by Federal law, the caregiver shall be assigned the rights, duties, and responsibilities that 

would otherwise be assigned to the parent, legal guardian, or legal custodian.

The power of attorney does not provide legal custody to the caregiver. If at any time the parent or legal guardian 

disagrees with the decision of the caregiver or chooses to make any health‐care or educational decisions for the 

child, the parent must revoke the power of attorney and provide the health‐care provider and local education agency 

either written documentation of the revocation or a court order appointing a legal guardian or legal custodian.

The decision of a caregiver to consent to or to refuse medical, dental, or mental health care for a child shall be 

superseded by any contravening decision of the parent having legal custody of the child as long as the decision 

of the parent does not jeopardize the life, health, or safety of the child. If at any time the parent or legal guardian 

disagrees with the decision of the caregiver or chooses to make any health‐care decisions for the child, then the 

parent must revoke the power of attorney for care of a minor child and provide the health‐care provider written 

documentation of the revocation. 

Withdrawing Guardianship 

Citation: Ann. Code § 34-6-306 

The power of attorney for care of a minor child may be terminated by an instrument in writing signed by either 

parent with legal custody. The power of attorney for care of a minor child may also be terminated by any order of a 

court of competent jurisdiction that appoints a legal guardian or legal custodian. 

Texas

 This issue is not addressed in the statutes reviewed. 

Utah

 This issue is not addressed in the statutes reviewed. 

Vermont

 This issue is not addressed in the statutes reviewed. 

Virgin Islands

 This issue is not addressed in the statutes reviewed. 
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Virginia

Who Can Nominate a Standby Guardian 

Citation: Ann. Code §§ 16.1-349; 16.1-351

A qualified parent may petition the juvenile court to approve a standby guardian for the child. ‘Qualified parent’ 

means a parent who has been diagnosed by a licensed physician to be afflicted with a progressive or chronic 

condition caused by injury, disease, or illness from which, to a reasonable degree of medical probability, the patient 

cannot recover. 

Any other person may file a petition. If the petitioner, however, is other than the child’s custodial parent, the parent 

 must give consent. 

How to Establish a Standby Guardian 

Citation: Ann. Code §§ 16.1-350; 16.1-352 

Upon petition, the court may approve a person as standby guardian for a child of a qualified parent upon the 

occurrence of a specific triggering event. The petition shall include: 

• The name and address of the petitioner and his or her relationship to the child, the name and address of 

the child’s qualified parent, and the name and address of any other parent of the child whose identity and 

whereabouts are known to the petitioner 

• The name, address, and birth date of the child 

• The proposed triggering event 

• Whether a determination of incompetence or debilitation has been made 

• Whether there is a significant risk that the parent will imminently become physically or mentally incapable of 

caring for the child or die as the result of a progressive chronic condition or illness 

• The name and address of the proposed standby guardian 

• Any known reasons why the child’s other parent is not assuming or should not assume the responsibilities of a 

standby guardian 

The parent may also name a standby guardian by executing a written designation at any time. 

Children who are age 12 or older must be notified of any hearing. 

How Standby Authority Is Activated 

Citation: Ann. Code §§ 16.1-352; 16.1-353

The authority of the standby guardian is effective: 

• Upon receipt by the standby guardian of a determination of incompetence or a certificate of death 

• If so requested in the petition, upon receipt by the standby guardian of a written consent of the qualified 

parent and filing of the consent with the court 

The court‐approved standby guardian then has 30 days to file confirming documents with the court. A standby 

guardian by written designation must petition the court for approval as soon as possible, but no later than 30 days 

after the triggering event. 

If the parent has died, the standby guardian has 90 days to petition for the appointment of a permanent guardian or 

initiate proceedings to determine custody of the child. 

Involvement of the Noncustodial Parent 

Citation: Ann. Code § 16.1-350

Each parent whose identity and whereabouts are known must be notified of the petition. 

Another known parent, stepparent, adult sibling, or other adult related to the child may request a hearing within 10 

days. The court cannot proceed if a custody case is pending. 
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Authority Relationship of the Parent and the Standby 

Citation: Ann. Code §§ 16.1-349; 16.1-354

The standby guardian temporarily assumes the duties of guardian of a minor child on behalf of or in conjunction with 

a qualified parent upon the occurrence of a triggering event. This is meant to enable the parent to plan for the future 

care of a child, without terminating parental or legal rights. 

When a standby guardian’s authority is effective upon debilitation or incompetence of the parent, the standby 

guardian’s authority to act on behalf of the parent continues even though the parent is restored to health unless the 

parent notifies the guardian and, if appropriate, the court, in writing. 

Withdrawing Guardianship 

Citation: Ann. Code § 16.1-354 

The authority of a standby guardian who has been approved by the court may be revoked by the parent by filing a 

notice of revocation with the court. 

At any time following his or her approval by the court, a standby guardian may decline to serve by filing a written 

statement of refusal with the court and having the statement personally served on the parent. 

When a written designation has been executed but is not yet effective because the triggering event has not yet 

occurred, the parent may revoke or the prospective standby guardian may refuse the designation by notifying the 

other party in writing. A written designation may also be revoked by the execution of a subsequent inconsistent 

designation. 

Washington

 This issue is not addressed in the statutes reviewed. 

West Virginia

Who Can Nominate a Standby Guardian 

Citation: Ann. Code §§ 44A-5-2; 44A-5-3

A parent, functional parent, or any person acting on a parent’s behalf may petition for a standby guardian for a 

child of a qualified parent. ‘Qualified parent’ means a parent who has been diagnosed by a licensed physician to 

be afflicted with a progressive or chronic condition caused by injury, disease, or illness from which, to a reasonable 

 degree of medical probability, the patient cannot recover and that is likely to lead to debilitation or incompetence. 
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How to Establish a Standby Guardian 

Citation: Ann. Code §§ 44A-5-3; 44A-5-4; 44A-5-5 

Upon petition, the court may approve a person as standby guardian for a child of a qualified parent upon the 

occurrence of a specific triggering event. The petition shall include: 

• The name and address of the petitioner and his or her relationship to the child, the name and address of 

the child’s qualified parent, and the name and address of any other parent of the child whose identity and 

whereabouts are known 

• The name, address, and birth date of the child 

• The proposed triggering event 

• Whether a determination of incompetence or debilitation has been made 

• Whether there is a significant risk that the qualified parent will die imminently or become physically or 

mentally incapable of caring for the child or die as a result of a progressive chronic condition or illness 

• The name and address of the proposed standby guardian 

• Any known reasons why the child’s other parent is not assuming or should not assume the responsibilities of a 

standby guardian 

When a petition is filed by a person other than a parent having custody of the child, the standby guardian shall be 

appointed only with the consent of the qualified parent unless the court finds that such consent cannot be given for 

medical reasons. 

A parent may execute a written designation of a standby guardian at anytime. The written designation shall be 

signed by the parent and witnessed by two adults. 

Children who are age 14 or older must be notified of any hearing. 

How Standby Authority Is Activated 

Citation: Ann. Code §§ 44A-5-4; 44A-5-5; 44A-5-6

The authority of the standby guardian is effective: 

• Upon receipt by the standby guardian of a determination of incompetence or a certificate of death 

• If so requested in the petition, upon receipt by the standby guardian of a written consent of the qualified 

parent and filing of the consent with the court 

A court‐approved standby guardian then has 30 days to file confirming documents with the court. A standby 

guardian by written designation must petition the court for approval as soon as possible, but no later than 30 days 

after the triggering event. 

If the parent has died, the standby guardian has 90 days to petition for the appointment of a permanent guardian or 

initiate proceedings to determine custody of the child. 

Involvement of the Noncustodial Parent 

Citation: Ann. Code § 44A-5-3

Each parent whose identity and whereabouts are known must receive notice and a copy of the petition; he or she 

has 10 days to request a hearing. The court cannot proceed if a custody case is pending. 
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Authority Relationship of the Parent and the Standby 

Citation: Ann. Code §§ 44A-5-2; 44A-5-7

The standby guardian temporarily assumes the duties of guardian of the child on behalf of or in conjunction with a 

qualified parent upon the occurrence of a triggering event, to enable the parent to plan for the future of the child 

without terminating parental or legal rights. It creates co‐guardianship rights between a parent and the standby 

guardian, giving the standby guardian authority to act in a manner consistent with the known wishes of a qualified 

parent regarding the care, custody, and support of the child. 

When a standby guardian’s authority is effective due to debilitation or incompetence of the parent, the standby 

guardian’s authority to act on behalf of the parent continues even when the parent is restored to health unless the 

parent notifies the guardian and, if appropriate, the court, in writing. 

Withdrawing Guardianship 

Citation: Ann. Code § 44A-5-7

The authority of a standby guardian who has been approved by the court may be revoked by the parent by filing a 

notice of revocation with the court. 

At any time following his or her approval by the court, a standby guardian may decline to serve by filing a written 

statement of refusal with the court and having the statement personally served on the parent. 

When a written designation has been executed but is not yet effective because the triggering event has not yet 

occurred, the parent may revoke or the prospective standby guardian may refuse the designation by notifying the 

other party in writing. 

A written designation may also be revoked by the execution of a subsequent inconsistent designation. 

Wisconsin

Who Can Nominate a Standby Guardian 

Citation: Ann. Stat. § 48.978

A parent who is at significant risk of incapacity, debilitation, or death within 2 years may petition the court to appoint 

 a standby guardian. 

How to Establish a Standby Guardian 

Citation: Ann. Stat. § 48.978

A proceeding for the appointment of a standby guardian shall be initiated by a petition that shall include: 

• The name, birth date, and address of the child 

• The names and addresses of the child’s parent or parents, guardian, and legal custodian 

• The name and address of the person nominated as standby guardian 

• The proposed triggering event 

• A statement that there is a significant risk that the petitioner will become incapacitated or debilitated or 

die, as applicable, within 2 years after the date on which the petition is filed and the factual basis for that 

statement 

Notice of the hearing must be served on the child if the child is age 12 or older, and the child’s guardian, guardian 

ad litem, counsel, and other parent, if that parent has not joined in the petition and if that parent can with 

reasonable diligence be located. At the hearing, the court may approve the appointment of the standby guardian if 

it is found to be in the best interests of the child. 

A parent may also designate a standby guardian for his or her child by means of a written designation signed by the 

parent in the presence of two witnesses who are age 18 or older, neither of whom may be the standby guardian, and 

by the standby guardian. An optional form is provided in the statute. 
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How Standby Authority Is Activated 

Citation: Ann. Stat. § 48.978

The authority of the standby guardian will commence upon the parent’s death, incapacity, debilitation with consent, 

or written consent. The attending physician must document incapacity or debilitation. 

If the guardianship has prior court approval, the standby guardian has 90 days from the triggering event to file 

confirming documents. If the guardianship is by written designation only, the standby guardian has 180 days from 

the triggering event to file confirming documents and petition for appointment. 

Involvement of the Noncustodial Parent 

Citation: Ann. Stat. § 48.978

The other parent must join in the petition unless he or she refuses, cannot be located, or indicates an unwillingness 

to assume responsibility for the child. Reasonable diligence is required to locate the parent and serve notice. 

Authority Relationship of the Parent and the Standby 

Citation: Ann. Stat. § 48.978

The commencement of a guardianship does not divest the parent of any parental rights. The authority of the standby 

guardian is suspended upon a determination of the parent’s recovery or remission. 

Withdrawing Guardianship 

Citation: Ann. Stat. § 48.978

If at any time before the guardianship begins the court finds that the determination of the court no longer applies, 

the court may rescind the guardianship order. 

A person who is appointed as a standby guardian may, at any time before the guardianship begins, renounce that 

appointment by executing a written renunciation, filing the renunciation with the court, and notifying the petitioner 

in writing. 

The petitioner may revoke a standby guardianship at any time before the guardianship begins by executing a written 

revocation, filing the revocation with the court, and notifying the standby guardian in writing. 

The petitioner may revoke a standby guardianship at any time after the guardianship has commenced by executing 

a written revocation, filing the written revocation with the court, and notifying the standby guardian in writing of 

the revocation. The court may rescind the guardianship order if the court determines that rescission is in the best 

interests of the child. 

A parent who has made a written designation may, at any time before the filing of a petition, revoke it by executing 

a written revocation and notifying the standby guardian in writing, making a subsequent written designation, or 

verbally revoking the standby guardianship in the presence of two witnesses. 

After a petition for confirmation of a written designation has been filed, but before the standby guardian has been 

judicially appointed, a parent who has created a standby guardianship by written designation may revoke it by filing 

a revocation with the court and notifying the standby guardian in writing of the revocation. The court may dismiss 

the petition and rescind the guardianship if the court determines that rescission is in the best interests of the child. 

Wyoming

 This issue is not addressed in the statutes reviewed.