Standby Guardianship

Author: Christina Bach, LCSW, MBE, OSW-C
Last Reviewed: February 14, 2024

Standby guardianship allows parents, legal guardians, or legal custodians, with a disabling medical condition or terminal illness to create a legal document that establishes a legally secure future for their child(ren) without giving up their parental rights. While the parent/legal guardian/legal custodian is still alive, the standby guardian is meant to step up to responsibilities that focus on the best interest of the child when needed. The standby guardian is also comfortable with stepping back when the parent/legal guardian/legal custodian is able to manage these needs.

Approximately 36 states and the District of Columbia have laws about standby guardianship. For more information about your state’s policies regarding standby guardianship visit the US Department of Health and Human Services Child Welfare Information Gateway.

  • Standby guardianships may only be created by parents, legal guardians, or legal custodians with disabling medical conditions or terminal illness.
  • Any parent, legal guardian, or legal custodian with a disabling medical condition or terminal illness can appoint a standby guardian.
  • Standby guardians are usually appointed for a limited period of time that is triggered by a specific event.
  • Standby guardianship does not mean the parent/legal guardian/legal custodian gives up their parental rights.
  • Standby guardianship allows a parent/legal guardian/legal custodian to legally “transfer” their parental rights if they are unable to care for their child(ren) for a certain period of time.
  • The standby guardianship can continue after the death of the parent/legal guardian/legal custodian.
  • The parent/legal guardian/legal custodian has a great deal of control over the guardianship. The parent/legal guardian/legal custodian can end the temporary guardianship at any time.
  • The parents/legal guardian/legal custodian also share in decision-making responsibilities with the standby guardian.
  • These powers are revocable; this is not a permanent designation of parental rights.
  • The rules for when standby guardianship goes into effect, called a “triggering event,” vary by state. A triggering event can include the incompetence or death of a parent. In some states, written consent by the parent/legal guardian/legal custodian is all that is needed to start the standby guardianship. Be sure to check your state’s laws for what qualifies as a “triggering event.”
  • Having a standby guardianship plan in place is a good idea, but it's also important to include any conditions of guardianship in your Will.

For parents/legal guardians/legal custodians coping with cancer, appointing a standby guardian can give you added peace of mind. However, it should not be entered into lightly. Think carefully about who will act in the best interest of your child(ren). Talk to this person about being a standby guardian for your child(ren) in the event of your inability to care for them. What things are important to you about how your child is raised, cared for, disciplined, educated, and supported? These are important topics to think about when deciding who may be a good standby guardian for your child(ren).

Resources for More Information

Standby Guardianship Designation Form (remember that Standby Guardianship is ordered by the Court). This document can help you to communicate your wishes to the court.

Rubenstein, J.S. (2019). Standby guardianship legislation: Summer 2019. Estate planning and Community Property Law Journal, 27, 287-308.

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