act-1998-0-103•Pennsylvania Act 1998-103 — DOMESTIC RELATIONS CODE (23 PA.C.S.) - AMEND STANDBY GUARDIANS
Pennsylvania Act 1998-103 — DOMESTIC RELATIONS CODE (23 PA.C.S.) - AMEND STANDBY GUARDIANS
act-1998-0-1031998 Pa. Act 103Law
Act text
DOMESTIC RELATIONS CODE (23 PA.C.S.) - AMEND STANDBY GUARDIANS
Act of Nov. 24, 1998, P.L. 811, No. 103 Cl. 23
Session of 1998
No. 1998-103
SB 1051
AN ACT
Amending Title 23 (Domestic Relations) of the Pennsylvania
Consolidated Statutes, providing for standby guardians for
minors.
The General Assembly finds and declares as follows:
(1) Existing law does not provide adequately for the
needs of a parent who is terminally ill or who is
periodically incapable of caring for the needs of a minor due
to the parent's incapacity or debilitation resulting from
illness and who desires to make long-term plans for the
future of a minor without terminating or limiting in any way
the parent's legal rights.
(2) It is the intent of the General Assembly to create
an expeditious procedure which will enable a parent who is
terminally ill or periodically incapable or debilitated to
make long-term plans for a minor without terminating or
limiting in any manner parental rights.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Title 23 of the Pennsylvania Consolidated
Statutes is amended by adding a chapter to read:
CHAPTER 56
STANDBY GUARDIANSHIP
Subchapter
A. Preliminary Provisions
B. General Provisions
SUBCHAPTER A
PRELIMINARY PROVISIONS
Sec.
5601. Short title of chapter.
5602. Definitions.
5603. Scope.
§ 5601. Short title of chapter.
This chapter shall be known and may be cited as the Standby
Guardianship Act.
§ 5602. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Alternate." A person with all the rights, responsibilities
and qualifications of a standby guardian who shall become a
standby guardian only in the event that the currently designated
standby guardian is unable or refuses to fulfill his obligation.
"Attending physician." A physician who has primary
responsibility for the treatment and care of the designator. If
physicians share responsibility, another physician is acting on
the attending physician's behalf or no physician has primary
responsibility, any physician who is familiar with the
designator's medical condition may act as an attending physician
under this chapter.
"Coguardian." A person who along with a parent shares
physical or legal custody, or both, of a child.
"Consent." A written authorization signed by the designator
in the presence of two witnesses who shall also sign the
writing. The witnesses must be 18 years of age or older and not
named in the designation.
"Court." Family Court Division or domestic relations section
of a court of common pleas unless otherwise provided by local
rules of court.
"Debilitation." A person's chronic and substantial inability
as a result of a physically incapacitating disease or injury to
care for a dependent minor.
"Designation." A written document naming the standby
guardian. A parent may designate an alternate standby guardian
in the same writing.
"Designator." A parent or a legal guardian who appoints a
standby guardian.
"Determination of debilitation." A written finding made by
an attending physician which states that the designator suffers
from a physically incapacitating disease or injury. No
identification of the illness in question is required.
"Determination of incapacity." A written finding made by an
attending physician which states the nature, extent and probable
duration of the designator's mental or organic incapacity.
"Incapacity." A chronic and substantial inability, resulting
from a mental or organic impairment, to understand the nature
and consequences of decisions concerning the care of the
designator's dependent minor and a consequent inability to care
for the minor.
"Standby guardian." A person named by a designator to assume
the duties of coguardian or guardian of a minor and whose
authority becomes effective upon the incapacity, debilitation
and consent, or death of the minor's parent.
"Triggering event." A specified occurrence stated in the
designation which empowers a standby guardian to assume the
powers, duties and responsibilities of guardian or coguardian.
§ 5603. Scope.
The provisions of Chapter 53 (relating to custody) and 20
Pa.C.S. Ch. 25 (relating to wills) shall apply to standby
guardians, coguardians, guardians and any alternates unless
otherwise specified in this chapter. Nothing in this chapter
shall be construed to deprive any parent, custodial or
noncustodial, of legal parental rights. Nothing in this chapter
shall be construed to relieve any parent, custodial or
noncustodial, of a duty to support a child under the provisions
of Chapter 43 (relating to support matters generally).
SUBCHAPTER B
GENERAL PROVISIONS
Sec.
5611. Designation.
5612. Petition for approval of a designation.
5613. Authority of standby guardian.
5614. Revocation.
5615. Conflicting documents.
5616. Bond.
§ 5611. Designation.
(a) General rule.--A custodial parent or legal guardian may
designate a standby guardian by means of a written designation
unless the minor has another parent or adoptive parent:
(1) whose parental rights have not been terminated or
relinquished;
(2) whose whereabouts are known; and
(3) who is willing and able to make and carry out the
day-to-day child-care decisions concerning the minor.
(b) Exception where other parent consents.--Notwithstanding
subsection (a), a parent or legal guardian may designate a
standby guardian with the consent of the other parent.
(c) Contents.--
(1) A designation of a standby guardianship shall
identify the custodial parent or legal guardian making the
designation, the minor or minors, any other parent, the
standby guardian and the triggering event or events upon
which a named standby guardian shall become a coguardian or
guardian. If desired, different standby guardians may be
designated for different triggering events. The designation
shall also include the signed consent of the standby guardian
and the signed consent of any other parent or an indication
why the other parent's consent is not necessary.
(2) The designation shall be signed by the designating
parent or legal guardian 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. If the
parent or legal guardian is physically unable to sign the
designation, the parent or legal guardian may direct another
person not named in the designation to sign on the parent's
or the legal guardian's behalf in the presence of the parent
or legal guardian and the witnesses.
(3) A parent or legal guardian may also but need not
designate an alternate in the designation.
(4) A designation may but need not be in the following
form:
I (insert name of designator) do hereby appoint
(insert name, address and telephone number of standby
guardian) as the standby guardian of (insert name(s) of
minor(s)) to take effect upon the occurrence of the
following triggering event or events (insert specific
triggering events).
I hereby revoke all former wills and codicils to the
extent that there is a conflict between those formerly
executed documents and this, my duly executed standby
guardian designation.
I am the (insert designator's relationship to
minor(s)) of (insert name(s) of minor(s)).
(Insert name(s) of minor(s)'s other parent(s)) is the
father/mother of (insert name(s) of minor(s)).
His/her address is:_____________________________________
________________________________________________________
(Check all that apply):
____ He/she died on (insert date of death).
____ His/her parental rights were terminated or
relinquished on (insert date of termination or
relinquishment).
____ His/her whereabouts are unknown. I understand that
all living parents whose rights have not been
terminated must be given notice of this designation
pursuant to the Pennsylvania Rules of Civil
Procedure or a petition to approve this designation
may not be granted by the court.
____ He/she is unwilling and unable to make and carry
out day-to-day child-care decisions concerning the
minor.
____ He/she consents to this designation and has signed
this form below.
By this designation I am granting (insert name of
standby guardian) the authority to act for 60 days
following the occurrence of the triggering event as a
coguardian with me or, in the event of my death, as
guardian of my minor child(ren).
Optional: I hereby nominate (insert name, address
and telephone number of alternate standby guardian) as
the alternate standby guardian to assume the duties of
the standby guardian named above in the event the standby
guardian is unable or refuses to act as a standby
guardian.
If I have indicated more than one triggering event,
it is my intent that the triggering event which occurs
first shall take precedence. If I have indicated "my
death" as the triggering event, it is my intent that the
person named in the designation to be standby guardian
for my minor child(ren) in the event of my death shall be
appointed as guardian of my minor child(ren) when I die.
It is my intention to retain full parental rights to
the extent consistent with my condition and to retain the
authority to revoke the standby guardianship if I so
choose.
This designation is made after careful reflection,
while I am of sound mind.
_________________________ ___________________________
(Date) (Designator's signature)
_________________________ ___________________________
(Witness's signature) (Witness's signature)
_________________________ ___________________________
(Number and Street) (Number and Street)
__________________________ ___________________________
(City, State and Zip Code) (City, State and Zip Code)
(If applicable: I (insert name of other parent)
hereby consent to this designation.
____________________ ______________________________
(Date) (Signature of other parent)
________________________________________________________
(Address of other parent)
I, (insert name of standby guardian) hereby accept my
nomination as standby guardian of (insert minor(s)'s
name(s)). I understand that my rights and
responsibilities toward the minor child(ren) named above
will become effective upon the occurrence of the above-
stated triggering event or events. I further understand
that in order to continue caring for the child(ren), I
must file a petition with the court within 60 days of the
occurrence of the triggering event.
_____________________ ________________________
(Date) (Signature of standby guardian)
§ 5612. Petition for approval of a designation.
(a) General rule.--A petition for court approval of a
designation under this chapter may be made at any time by filing
with the court a copy of the designation. If the triggering
event has not occurred on or before the time of filing, only the
designator may file the petition. If the triggering event has
occurred on or before the time of filing, the standby guardian
named in the designation may file the petition, and the petition
shall also contain one of the following:
(1) A determination of the designator's incapacity.
(2) A determination of the designator's debilitation and
the designator's signed and dated consent.
(3) A copy of the designator's death certificate.
(b) Notice.--
(1) The petitioner shall notify any person named in the
designation within ten days of the filing of the petition and
of any hearing thereon.
(2) If the petition alleges that a nondesignating parent
cannot be located, that parent shall be notified in
accordance with the notice provisions of the Pennsylvania
Rules of Civil Procedure in Custody Matters. No notice is
necessary to a parent whose parental rights have previously
been terminated or relinquished.
(c) Jurisdiction.--For purposes of determining jurisdiction
under this chapter, the provisions of Subchapter B of Chapter 53
(relating to child custody jurisdiction) shall apply.
(d) Presumptions.--In a proceeding for judicial appointment
of a standby guardian, a designation shall constitute a
rebuttable presumption that the designated standby guardian is
capable of serving as coguardian or guardian. When the
designator is the sole surviving parent, when the parental
rights of any noncustodial parent have been terminated or
relinquished or when all parties consent to the designation,
there shall be a rebuttable presumption that entry of the
approval order is in the best interest of the child. In any
case, if the court finds entry of the approval order to be in
the best interest of the child, the court shall enter an order
approving the designation petition.
(e) Approval without hearing.--Approval of the designation
without a hearing is permitted when the designator is the sole
surviving parent, when the parental rights of any noncustodial
parent have been terminated or relinquished or when all parties
consent to entry of the approval order.
(f) Hearing.--In the event a hearing is required, it shall
be conducted in accordance with the proceedings set forth in
Chapter 53 (relating to custody).
(g) Court appearance.--The designator need not appear in
court if the designator is medically unable to appear.
§ 5613. Authority of standby guardian.
(a) General rule.--The standby guardian shall have authority
to act as coguardian or guardian upon the occurrence of the
triggering event. The commencement of the standby guardian's
authority to act as coguardian pursuant to a determination of
incapacity, a determination of debilitation and consent or the
receipt of 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 pursuant to the death of the designator shall not
confer upon the standby guardian more than physical and legal
custody of the child as defined in Chapter 53 (relating to
custody). A coguardian shall assure frequent and continuing
contact with and physical access to the child and shall further
assure the involvement of the parent, to include, to the
greatest extent possible, in the decision making on behalf of
the child.
(b) Effect of filing.--The designator may file a petition
for approval of a designation with the court at any time. If the
petition is approved by the court before the occurrence of the
triggering event, the standby guardian's authority will commence
automatically upon the occurrence of the triggering event. No
further petition or confirmation is necessary. 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
a coguardian or 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 section 5612 (relating to petition for approval of a
designation). If no petition is filed within the specified 60
days, the standby guardian shall lose all authority to act as
coguardian or guardian. If a petition is filed but the court
does not act upon it within the 60-day period, the temporary
legal authority to act as coguardian or guardian shall continue
until the court orders otherwise.
(c) Parental rights.--The commencement of a coguardian's or
guardian's authority under this subchapter may not itself divest
a parent or legal guardian of any parental or guardianship
rights.
(d) Restored capacity.--If a licensed physician determines
that the designator has regained capacity, the coguardian's
authority which commenced pursuant to the occurrence of a
triggering event shall become inactive, and the coguardian shall
return to having no authority. Failure of a coguardian to comply
with this provision and to immediately return the minor to the
designator's care shall entitle the designator to an emergency
hearing in a court of competent jurisdiction.
§ 5614. Revocation.
(a) Prepetition.--Prior to a petition being filed under
section 5612 (relating to petition for approval of a
designation), the designator may revoke a standby guardianship
by simple destruction of the designation and notification of the
revocation to the standby guardian.
(b) Postpetition.--After a petition has been filed, the
designator may revoke a standby guardianship by:
(1) executing a written revocation;
(2) filing the revocation with the court; and
(3) notifying the persons named in the designation of
the revocation in writing.
(c) Unwritten revocation.--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.
§ 5615. Conflicting documents.
If a parent has appointed a testamentary guardian of the
person or estate of a minor by will under 20 Pa.C.S. § 2519
(relating to testamentary guardian) and there is a conflict
between that will and a duly executed written standby guardian
designation, the document latest in date of execution shall
prevail.
§ 5616. Bond.
In no event shall a standby guardian be required to post bond
prior to the occurrence of the triggering event. The court may
require a bond if the standby guardian is designated the
coguardian or guardian of the estate of a minor but will not
require a bond for the coguardianship or guardianship of the
person of a minor.
Section 2. This act shall take effect in 60 days.
APPROVED--The 24th day of November, A. D. 1998.
THOMAS J. RIDGE
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