Topics on this page
- Standby guardianship generally
- Designation of guardian
- When does the guardianship take effect?
- Court appointment of guardian
- Terminating guardianship
- Brochures
Standby Guardianship Generally
A standby guardian is a person appointed by a parent of a child to take care of the child in the event that the parent becomes:
- Deceased or mentally incapacitated
- Debilitated by an illness or injury
- Subject to an adverse immigration action
Guardianship does not constitute custody. At least one parent must consent to the appointment. A parent may revoke their consent to the standby guardianship at any time. Parents do not lose their parental rights at any time.
Read the Law: Md. Code, Estates & Trusts § 13–901-908
Designation of Standby Guardian
Parents should, if possible, designate a standby guardian before the guardian is needed. A standby guardianship can be accomplished by parental designation where a parent signs a document entitled Parental Designation and Consent to Beginning the Standby Guardianship (Designation Form) in the presence of two witnesses, which announces the parent's intention to appoint the standby guardian. The standby guardian must also sign the document. The document must include the following information:
- Identity of the parents, the minor, and the standby guardian
- State the duties of the standby guardian
- Indicate that the parents intend the standby guardian to become the minor’s guardian if necessary
There is no requirement that the parents be imminently incapacitated. The Designation Form is posted on the Maryland Courts website.
Read the Law: Md. Code, Estates & Trusts § 13-904
When Does the Guardianship Take Effect and What Steps Must the Guardian Take?
If the parent has completed the Designation Form, the guardianship takes effect upon the mental incapacitation, physical debilitation, or start of an adverse immigration action against the parent. The following defines these terms and explains what the standby guardian must do.
Read the Law: Md. Code, Estates & Trusts § 13-904
Mentally Incapacitated
Mental incapacitation means that a doctor has determined that the parent is mentally unable to care for the child. The guardianship will take effect as soon as the standby guardian receives written documentation, from a doctor, that the parent is unable to care for their child.
The standby guardian has 180 days to petition the court for a judicial appointment. If the standby guardian does not petition the court, the guardianship will terminate after the 180 days has passed.
The standby guardian must file the following documents with the court along with the petition:
- The Designation Form signed by the parent and witnessed by 2 adults who are not the standby guardian and signed by the standby guardian
- The consent form of the other parent (if applicable)
- Doctor's written determination of mental incapacitation
- Child’s birth certificate
Physical Debilitation
Physical debilitation means that a doctor has determined that the parent can no longer physically care for the child. The guardianship will begin when the standby guardian has the following 3 documents:
- The Designation Form signed by the parent and witnessed by 2 adults who are not the standby guardian and signed by the standby guardian
- Written documentation from the doctor that the parent is physically debilitated
- Child's birth certificate
Once the standby guardian receives these 3 documents, the guardianship will have begun. The standby guardian has 180 days to petition the court for a judicial appointment. If the standby guardian does not petition the court, the guardianship will terminate after the 180 days has passed. The standby guardian must file the following documents with the court along with the petition:
- The Designation Form signed by the parent and witnessed by 2 adults who are not the standby guardian and signed by the standby guardian
- Parental consent to the beginning of the standby guardianship
- Doctor’s written determination of physical debilitation
- Child’s birth certificate
Adverse Immigration Action
The standby guardianship will begin when the standby guardian has:
- The Designation Form signed by the parent and witnessed by two adults who are not the standby guardian and signed by the standby guardian
- The standby guardian has evidence that the parent is subject to an adverse immigration action
The law defines an adverse immigration action to include (but not limited to):
- Arrest or for an alleged violation of federal immigration law
- Detention by the Department of Homeland Security (or any agency acting on behalf of Homeland Security)
- Voluntary or involuntary departure from the United States under an order by the Immigration Court
- Revocation of a visa by the Department of State
- Denial of readmission by Homeland Security
- Denial of admission by Homeland Security
In the first 180 days after the adverse immigration action occurs, the standby guardian is authorized to care for the children without any need to file in court. The standby guardianship automatically terminates after 180 days unless the standby guardian files a Petition by Standby Guardian (Judicial Appointment) (CG-GN-042) in the circuit court where the child resides before the end of the 180 days. The filing of the petition automatically extends the standby guardianship until the court rules on the petition. The standby guardian must file the following documents with the court along with the petition:
- The Designation Form signed by the parent and witnessed by 2 adults who are not the standby guardian and signed by the standby guardian
- Evidence of the adverse immigration action against the parent
- Child’s birth certificate
- If the standby guardian has served for more than three months: (a) A statement from the child's primary healthcare provider that the child receives appropriate healthcare; (b) if the child is enrolled in school, a copy of the child's more recent report card or other progress report; and (c) a reference to all court records pertaining to the child during that period.
Parental Consent
If only one parent is incapacitated, debilitated, or subject to an adverse immigration action, the standby guardian must identify other persons with parental rights (biological parent or guardian), if their whereabouts are known, and make good faith efforts to notify them about the petition. They will receive notice as interested persons and the court may order notice by publication or posting as in other guardianship cases. The court's Designation Form (CC-GN-041) requires that the parent indicate such reasons they have not consented (e.g. mental incapacity, abandonment of the child, no longer has custody of the child, parentage unknown, lives in another country, cannot be located and attempts have been made to locate him/her).
If the case of an adverse immigration action, if a parent resides outside the United States, the standby guardian may file the petition without the consent of the parent living outside the United States. If the standby Guardian is unable to locate the other parent of the child, they must give the court proof of reasonable efforts to locate the other parent. If the court is satisfied that reasonable efforts were made to locate the other parent, the court may proceed without the other parent's approval.
The Court Can Appoint a Standby Guardian if Necessary
The court in the case of mental incapacity can appoint a standby guardian if a parent demonstrates that there is a significant risk that the parent will either become incapacitated or die within 2 years of the filing of the Petition By Parent (Appointment of Standby Guardian). If this is the case, the court may appoint the standby guardian. The Petition By Parent can be located at Maryland Courts website (CC-GN-43).
In other cases where the standby guardian wants the standby guardianship authority to last more than 180 days, the standby guardian must file the Petition before the end of the 180 days and such filing automatically extends the standby guardian's authority until the court takes action. The Petition must be filed in the court where the child resides. The Petition can be located at Maryland Courts website (CC-GN-042). The Court will hold a hearing in all guardianship cases involving a minor even if there is parental consent.
Read the Law: Md. Rules, Title 10, Chapter 400 and Rule 10-404
For a judicial appointment to be made, notice to both parents is necessary. If there is only one parent petitioning, proof must be shown that reasonable efforts have been made to locate the other parent, the other parent is dead, or that the other parent consents to the guardianship either through testimony at court or by a signed consent form or in the case of adverse immigration cases, the other parent resides outside the United States.
Read the Law: Md. Code, Estates & Trusts § 13-903
Terminating the Guardianship
If a parent executes the Designation Form to create the standby guardianship, and the parent or standby guardian have not filed the Petition, the parent can revoke the standby guardianship by notifying the standby guardian verbally or in writing.
If a Petition has been filed, the parent can terminate the guardianship by executing a written notice that the guardianship is revoked, filing that with the court and notifying the guardian.
Read the Law: Md. Code, Estates & Trusts § 13-903 and 904