PRINTER'S NO. 3164
No. 2500 Session of 1994
INTRODUCED BY STURLA, FAJT, COY, LAUB, MUNDY, KUKOVICH, PRESTON,
TRELLO, WILLIAMS, JOSEPHS, MELIO, PISTELLA, ROONEY, LAUGHLIN,
STEELMAN, CURRY AND BISHOP, FEBRUARY 1, 1994
REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 1, 1994
AN ACT
1 Providing for standby guardians for infants; regulating
2 procedure; and providing for designation, for petitions and
3 approval by the court.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Short title.
7 This act shall be known and may be cited as the Standby
8 Guardian Act.
9 Section 2. Definitions.
10 The following words and phrases when used in this act shall
11 have the meanings given to them in this section unless the
12 context clearly indicates otherwise:
13 "Attending physician." A physician who has primary
14 responsibility for the treatment and care of the petitioner.
15 Where more than one physician shares responsibility or where a
16 physician is acting on the attending physician's behalf, any
17 physician may act as the attending physician pursuant to this
18 act. Where no physician has responsibility, any physician who is
1 familiar with the petitioner's medical condition may act as
2 attending physician pursuant to this act.
3 "Debilitation." A chronic and substantial inability, as a
4 result of physically debilitating illness, disease or injury, to
5 care for one's dependent infant. The term "debilitated" means
6 the state of having a debilitation.
7 "Incapacity." A chronic and substantial inability, as a
8 result of mental impairment, to understand the nature and
9 consequences of decisions concerning the care of one's dependent
10 infant and a consequent inability to care for such infant. The
11 term "incapacitated" means the state of having an incapacity.
12 "Standby guardian."
13 (1) A person judicially appointed pursuant to this act
14 as standby guardian of the person or property of an infant
15 and whose authority becomes effective upon the incapacity or
16 death of the infant's parent or upon the consent of the
17 parent.
18 (2) A person designated as standby guardian pursuant to
19 this act whose authority becomes effective upon the
20 incapacity of the infant's parent or upon the debilitation
21 and consent of the parent.
22 Section 3. Appointment.
23 (a) General rule.--A petition for judicial appointment of a
24 standby guardian of the person and/or property of an infant
25 pursuant to this act may be made by a parent of an infant upon
26 petition to the court of common pleas.
27 (b) Petition contents.--A petition for the judicial
28 appointment of a standby guardian of an infant shall:
29 (1) state whether the authority of the standby guardian
30 is to become effective upon the petitioner's incapacity, upon
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1 the petitioner's death or upon whichever occurs first; and
2 (2) state that there is a significant risk that the
3 petitioner will become incapacitated or die, as applicable,
4 within two years of the filing of the petition and the basis
5 for that statement.
6 (c) Court appearance.--The petitioner's appearance in court
7 shall not be required if the petitioner is medically unable to
8 appear, except upon motion and for good cause shown.
9 (d) Decree.--
10 (1) If the court finds that there is a significant risk
11 that the petitioner will become incapacitated or die within
12 two years of the filing of the petition and that the
13 interests of the infant will be promoted by the appointment
14 of a standby guardian of the person and/or property, it shall
15 make a decree accordingly.
16 (2) The decree shall specify whether the authority of
17 the standby guardian is effective upon the receipt of a
18 determination of the petitioner's incapacity, upon the
19 receipt of the certificate of the petitioner's death or upon
20 whichever occurs first and shall also provide that the
21 authority of the standby guardian may earlier become
22 effective upon written consent of the parent pursuant to
23 subsection (e)(3). The decree shall also indicate that the
24 authority of the standby guardian is effective upon the
25 petitioner's consent.
26 (3) If, at any time prior to the commencement of the
27 authority of the standby guardian, the court finds that the
28 requirements of paragraph (1) are no longer satisfied, it may
29 rescind the decree.
30 (e) Commencement.--
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1 (1) Where the decree provides that the authority of the
2 standby guardian is effective upon receipt of the
3 determination of the petitioner's incapacity, the standby
4 guardian's authority shall commence upon the standby
5 guardian's receipt of a copy of a determination of
6 incapacity. The standby guardian shall file a copy of the
7 determination of incapacity with the court that issued the
8 decree within 90 days of the date of receipt of the
9 determination, or the standby guardian's authority may be
10 rescinded by the court.
11 (2) Where the decree provides that the authority of the
12 standby guardian is effective upon receipt of a certificate
13 of the petitioner's death, the standby guardian's authority
14 shall commence upon the standby guardian's receipt of a
15 certificate of death. The standby guardian shall file the
16 certificate of death with the court that issued the decree
17 within 90 days of the date of the petitioner's death or the
18 standby guardian's authority may be rescinded by the court.
19 (3) Notwithstanding paragraphs (1) and (2), a standby
20 guardian's authority shall commence upon the standby
21 guardian's receipt of the petitioner's written consent to
22 commencement, signed by the petitioner in the presence of two
23 witnesses at least 18 years of age, other than the standby
24 guardian, who shall also sign the writing. Another person may
25 sign the written consent on the petitioner's behalf and at
26 the petitioner's direction if the petitioner is physically
27 unable to do so, provided the consent is signed in the
28 presence of the petitioner and the witnesses. The standby
29 guardian shall file the written consent with the court that
30 issued the decree within 90 days of the date of receipt of
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1 the written consent or the standby guardian's authority may
2 be rescinded by the court.
3 (f) Revocation.--The petitioner may revoke a standby
4 guardianship created under this act by executing a written
5 revocation, filing it with the court that issued the decree and
6 promptly notifying the standby guardian of the revocation.
7 (g) Renouncing.--A person judicially appointed standby
8 guardian pursuant to this subsection may at any time before the
9 commencement of his or her authority renounce the appointment by
10 executing a written renunciation and filing it with the court
11 that issued the decree and promptly notifying the petitioner of
12 the revocation.
13 Section 4. Designation.
14 (a) General rule.--A parent may designate a standby guardian
15 by means of a written designation, signed by the parent in the
16 presence of two witnesses at least 18 years of age, other than
17 the standby guardian, who shall also sign the document. Another
18 person may sign the written designation on the parent's behalf
19 and at the parent's direction if the parent is physically unable
20 to do so, provided the designation is signed in the presence of
21 the parent and the witnesses.
22 (b) Contents.--
23 (1) A designation of a standby guardian shall identify
24 the parent, the infant and the person designated to be the
25 standby guardian and shall indicate that the parent intends
26 for the standby guardian to become the infant's guardian in
27 the event the parent either becomes incapacitated or becomes
28 debilitated and consents to the commencement of the standby
29 guardian's authority.
30 (2) A parent may designate an alternate standby guardian
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1 in the same document, and by the same manner, as the
2 designation of a standby guardian.
3 (3) A designation may, but need not, be in the following
4 form:
5 Designation of Standby Guardian
6 I (name of parent) hereby designate (name, home
7 address and telephone number of standby guardian) as
8 standby guardian of the person and property of my
9 child(ren) (name of child(ren)).
10 (You may, if you wish, provide that the standby
11 guardian's authority shall extend only to the person, or
12 only to the property, of your child, by crossing out
13 "person" or "property," whichever is inapplicable,
14 above.)
15 The standby guardian's authority shall take effect if
16 and when either:
17 (1) my doctor concludes I am mentally incapacitated, and
18 thus unable to care for may child(ren) or
19 (2) my doctor concludes that I am physically
20 debilitated, and thus unable to care for my child(ren), and I
21 consent in writing before two witnesses to the standby
22 guardian's authority taking effect.
23 In the event the person I designate above is unable
24 or unwilling to act as guardian for my child(ren), I
25 hereby designate (name, home address and telephone number
26 of alternate standby guardian), as standby guardian of my
27 child(ren).
28 I also understand that my standby guardian's
29 authority will cease 60 days after commencing unless by
30 such date he or she petitions the court for appointment
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1 as guardian.
2 I understand that I retain full parental rights even
3 after the commencement of the standby guardian's
4 authority and may revoke the standby guardianship at any
5 time.
6 Signature..........................................
7 Address............................................
8 Date...............................................
9 I declare that the person whose name appears above
10 signed this document in my presence, or was physically
11 unable to sign and asked another to sign this document,
12 who did so in my presence. I further declare that I am at
13 least 18 years of age and am not the person designated as
14 standby guardian.
15 Witness Signature..................................
16 Address............................................
17 Date...............................................
18 Witness Signature..................................
19 Address............................................
20 Date...............................................
21 (c) Commencement.--The authority of the standby guardian
22 under a designation shall commence upon either:
23 (1) the standby guardian's receipt of a copy of a
24 determination of incapacity; or
25 (2) the standby guardian's receipt of a copy of a
26 determination of debilitation and a copy of the parent's
27 written consent to the commencement, signed by the parent in
28 the presence of two witnesses at least 18 years of age, other
29 than the standby guardian, who shall also sign the document.
30 Another person may sign the written consent on the parent's
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1 behalf and at the parent's direction if the parent is
2 physically unable to do so, provided such consent is signed
3 in the presence of the parent and the witnesses. The standby
4 guardian shall file a petition pursuant to subsection (d)
5 within 60 days of the date of its commencement or the standby
6 guardian's authority shall cease after that date, but shall
7 recommence upon such filing.
8 (d) Filing petition.--The standby guardian may file a
9 petition for appointment as guardian after receipt of either a
10 copy of a determination of incapacity or a copy of a
11 determination of debilitation and a copy of the parent's written
12 consent. The petition must:
13 (1) append the written designation of the person as
14 standby guardian; and
15 (2) append a copy of either:
16 (i) the determination of incapacity of the parent;
17 or
18 (ii) the determination of debilitation and the
19 parental consent; and
20 (3) if the petition is by a person designated as
21 alternate standby guardian, state that the person designated
22 as standby guardian is unwilling or unable to act as standby
23 guardian, and the basis for such statement.
24 (e) Decree.--If the court finds that the person was duly
25 designated as standby guardian, that a determination of
26 incapacity or a determination of debilitation and parental
27 consent has been made pursuant to this section, that the
28 interests of the infant will be promoted by the appointment of a
29 standby guardian of the person and/or property and that, if the
30 petition is by a person designated as alternate standby
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1 guardian, the person designated as standby guardian is unwilling
2 or unable to act as standby guardian, it must make a decree
3 accordingly.
4 (f) Revoker.--The parent may revoke a standby guardianship
5 created under this act:
6 (1) by notifying the standby guardian verbally or in
7 writing or by any other act evidencing a specific intent to
8 revoke the standby guardianship prior to the filing of a
9 petition; and
10 (2) where the petition has already been filed, by
11 executing a written revocation, filing it with the court
12 where the petition was filed and promptly notifying the
13 standby guardian of the revocation.
14 (g) Other petition.--The standby guardian may also file a
15 petition for appointment as guardian in any other manner
16 permitted by law, on notice to the parent, and may append a
17 designation of standby guardian to the petition for
18 consideration by the court in the determination of the petition.
19 Section 5. Determination of incapacity.
20 (a) General rule.--A determination of incapacity or
21 debilitation must be made by the attending physician to a
22 reasonable degree of medical certainty, be in writing and
23 contain the attending physician's opinion regarding the cause
24 and the nature of the petitioner's incapacity or debilitation as
25 well as its extent and probable duration. The attending
26 physician shall provide a copy of the determination of
27 incapacity or debilitation to the standby guardian, if the
28 standby guardian's identity is known to the physician.
29 (b) Request.--If requested by the standby guardian, an
30 attending physician shall make a determination regarding the
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1 petitioner's incapacity or debilitation for purposes of this
2 section.
3 (c) Notice.--The standby guardian shall ensure that the
4 petitioner is informed of the commencement of the standby
5 guardian's authority as a result of a determination of
6 incapacity and of the petitioner's right to revoke that
7 authority promptly after receipt of the determination of
8 incapacity, provided there is any indication of the petitioner's
9 ability to comprehend the information.
10 (d) Scope of determinations.--Commencement of the standby
11 guardian's authority pursuant to a determination of incapacity,
12 determination of debilitation or consent shall not, itself,
13 divest the petitioner of any parental or guardianship rights,
14 but shall confer upon the standby guardian concurrent authority
15 with respect to the infant.
16 Section 6. Filing.
17 (a) County clerk.--The clerk of any county upon being paid
18 the fees allowed therefore by law shall receive for filing any
19 instrument appointing or designating a standby guardian made by
20 a domiciliary of the county and shall give a written receipt
21 therefor to the person delivering it. The filing of an
22 appointment or designation of standby guardian shall be for the
23 sole purpose of safekeeping and shall not affect the validity of
24 the appointment or designation.
25 (b) Delivery.--The appointment or designation shall be
26 delivered only to:
27 (1) the parent who appointed or designated the standby
28 guardian;
29 (2) the standby guardian or alternate standby guardian;
30 (3) the person designated as standby guardian or
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1 alternate standby guardian; or
2 (4) any other person directed by the court.
3 Section 7. This act shall take effect in 60 days.
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