Protecting your kids, no matter what : Standby Guardianship
Globally mobile families are experts at navigating visas, relocations, and cultural leaps - but quite often emergency planning is not on the top of the to-do list.
For mobile families, a car accident in Seoul, a medical emergency in Lisbon, or serious immigration issues like deportation or detention disrupt the lives of all family members, especially minor children.
Essential estate planning with standby guardianship can provide a critical shield to protect global families. Standby guardianship is a great device to legally empower global parents’ chosen network to act immediately - sometimes across time zones and jurisdictions - so the family’s resilience travels together with them. This blog provides an overview of standby guardianship, and why it matters for families.
A Quick Note: we’re passionate about sharing information, but please remember that this blog post is for general knowledge only. It's not a substitute for professional legal or tax advice. Laws vary by state - for your specific jurisdiction or specific situation, always consult with a qualified attorney.
What is Standby Guardianship ?
A Standby Guardianship is a legal mechanism that allows minor children’s parents to designate a caregiver for the minor children in the event of the parents’ incapacity or unavailability. Such caregiver is called a guardian.
Parents do not lose their parental rights by appointing a standby guardian. Parental consent is required, and a parent may revoke their consent to the standby guardianship at any time.
Through standby guardianship, parents can appoint a guardian to care for their minor children during certain crises, such as serious illness, accidents, mental or physical incapacity, or adverse immigration proceedings.
Standby guardianship is available in a number of states in the U.S. A 2018 review of statutes across the U.S. showed that approximately 29 states, the District of Columbia, and the U.S. Virgin Islands have made statutory provisions for standby guardianships, according to Children’s Bureau, a federal agency within the U.S. Department of Health and Human Services (HHS).
Elements of Standby Guardianship
The Standby Guardian can step in to make critical decisions regarding your children's education, healthcare, and overall welfare during your absence. Key elements of an effective Standby Guardianship include:
Clear triggering events (e.g., death, mental incapacity, illness or injury, adverse immigration actions like detention or deportation)
Detailed procedures for how the guardianship is activated
Specific powers granted to the Standby Guardian
Duration of the guardianship and conditions for termination
Provisions for communication between parents and children during separation
Instructions regarding maintaining the children's cultural identity and language
Standby guardianship is typically established in one of two ways:
(1) Petition filing by the nominating parent(s), followed by a court hearing before a triggering event; or,
(2) Parents’ written designation, signed by two witnesses, followed by affirmation through a petition and a court hearing.
The standby guardian is authorized to assume responsibility for the child immediately upon being notified of the occurrence of a triggering event.
It's important to note that Standby Guardianship laws vary by state, with some states having specific statutory provisions while others rely on court-created mechanisms.
Contingency Planning for Emergencies
Developing comprehensive contingency plans is essential for global parents, including undocumented parents in the U.S.:
Emergency Response Plan: Create a detailed plan outlining immediate steps to be taken in an emergency, including contact information for your attorney, designated guardians, and other key individuals.
Documentation Preparation: Compile and organize important documents related to both parents and children, including names (don’t assume children know how to spell their parents’ names), birth certificates, social security cards, school records, medical records, and insurance information. Keep these documents in a secure but accessible location.
Financial Arrangements: Establish ways for accessing funds in an emergency, such as authorized users on bank accounts or prepaid legal service plans.
Communication Plan: Develop a plan for maintaining communication with children in the event of separation, including contact information for relatives in the home country and resources for facilitating international communication.
Psychological Support: Arrange for counseling or support services for minor children to help them cope with potential separation and understand the situation in an age-appropriate manner.
Practical Steps for Implementing Estate Plan (and Standby Guardianship)
(1) Document Preparation and Execution
Proper preparation and execution of your estate planning documents are essential for their validity:
Consultation: Schedule a confidential consultation with an attorney. Check if pro bono legal services are available in your community.
Information Gathering: Compile a comprehensive inventory of your assets, liabilities, and important family information.
Document Drafting: Work with your attorney to draft documents tailored to your specific circumstances and concerns.
Proper Execution: Ensure all documents are executed in accordance with state law requirements, including appropriate witnesses and notarization.
Translation: Consider having key documents translated into your native language to ensure full understanding.
Regular Review: Review and update your estate plan regularly, particularly after significant life events or changes in immigration law.
(2) Building a Support Network
Creating a network of trusted individuals and resources is vital:
Trusted Advisors: Identify individuals who can provide guidance and support, including legal, financial, and emotional assistance.
Community Organizations: Connect with immigrant advocacy groups, cultural organizations, and religious institutions that can provide resources and support.
Educational Resources: Seek out educational materials and workshops on estate planning for immigrant families to enhance your understanding of the process.
Professional Network: Develop relationships with professionals who understand your unique circumstances, including attorneys, financial advisors, and social workers.
Standby Guardianship in Maryland
(Source : People's Law Library Contributors; Updated by Web Services Librarian)
Maryland law provides a form that can be used to designate a standby guardian but does not require a specific format. Parents can complete the Parental Designation and Consent to Beginning the Standby Guardianship (Designation Form) provided by the Maryland Judiciary.
The Designation Form includes the following information:
Identity of the parents
Identity of children for whom a standby guardian is being appointed
Identity and contact information for the individual designated as the standby guardian
The designated powers and duties of the standby guardian
The Standby Guardian can be designated as one, or both, of the following:
Guardian of the Property - makes financial decisions (e.g., paying bills or costs to cover the child(ren)'s personal needs, applying for benefits, paying taxes).
Guardian of Person - makes non-financial decisions (e.g., housing, medical care, education, clothing, food, and everyday needs).
When the standby guardian's authority becomes effective (sometimes called a "Triggering Event").
How long the standby guardianship lasts.
The Designation Form indicates that the standby guardianship lasts for 180 days. If necessary, the guardian can petition the court for appointment as guardian to extend beyond 180 days.
Non-English versions of the form can be downloaded from the Standby Guardianship Project.
Parents can consent to the designation of the standby guardian together or, if the parents are no longer together, separately. A Consent to Designation of Standby Guardian is included as part of the Designation Form and should be completed if the parents are no longer together. The filing parent may be unable to obtain consent from the other parent (or any other party with parental rights). In that case, the individual should be identified on the form, and the reason for non-consent should be indicated.
Closing
Remember that estate planning is not a one-time event but an ongoing process that should be reviewed and updated regularly to reflect changes in your family circumstances, financial situation, and the legal landscape.
By taking proactive steps now, you can gain peace of mind knowing that you have done everything possible to protect your children and preserve your family's legacy.
Helpful Resources
Standby Guardianship - Child Welfare Information Gateway (Federal agency) https://www.childwelfare.gov/resources/standby-guardianship/
Maryland - General information on Standby Guardianship People's Law Library Contributors; Updated by Web Services Librarian)
