§ 1726 — Standby guardians 1

New York § 1726

• Jurisdiction: New York
• Law SCP: Surrogate's Court Procedure
• Art. 17: Guardians and Custodians

Text

§ 1726. Standby guardians\n 1. For the purpose of this section:\n (a) "Standby guardian" means (i) a person judicially appointed\npursuant to subdivision three of this section as standby guardian of the\nperson and/or property of an infant whose authority becomes effective\nupon the incapacity, administrative separation, or death of the infant's\nparent, legal guardian, legal custodian or primary caretaker or upon the\nconsent of the parent, legal guardian, legal custodian or primary\ncaretaker; and (ii) a person designated pursuant to subdivision four of\nthis section as standby guardian whose authority becomes effective upon\nthe death, administrative separation, or incapacity of the infant's\nparent, legal guardian, legal custodian or primary caretaker or upon the\ndebilitation and consent of the parent, legal guardian, legal custodian\nor primary caretaker.\n (b) "Legal guardian" means the court-appointed guardian of the\ninfant's person and/or property.\n (c) "Attending physician" means the physician who has primary\nresponsibility for the treatment and care of the infant's parent, legal\nguardian, legal custodian or primary caretaker. Where more than one\nphysician shares such responsibility, or where a physician is acting on\nthe attending physician's behalf, any such physician may act as the\nattending physician pursuant to this section. Where no physician has\nsuch responsibility, any physician who is familiar with the parent's,\nlegal guardian's, legal custodian's or primary caretaker's medical\ncondition may act as the attending physician pursuant to this section.\n (d) "Debilitation" means a chronic and substantial inability to care\nfor one's dependent infant, as a result of (i) a progressively chronic\nor irreversibly fatal illness, or (ii) a physically debilitating\nillness, disease or injury. "Debilitated" means the state of having a\ndebilitation.\n (e) "Incapacity" means a chronic and substantial inability, as a\nresult of mental impairment, to understand the nature and consequences\nof decisions concerning the care of one's dependent infant, and a\nconsequent inability to care for such infant. "Incapacitated" means the\nstate of having an incapacity.\n (f) "Administrative separation" means a parent, legal guardian, legal\ncustodian or primary caretaker's (i) in connection with a federal\nimmigration matter: arrest, detention, incarceration, removal and/or\ndeportation; or (ii) receipt of official communication by federal,\nstate, or local authorities regarding immigration enforcement which\ngives reasonable notice that care and supervision of the child by the\nparent, legal guardian, legal custodian, or primary caretaker will be\ninterrupted or cannot be provided.\n 2. The provisions of this article relating to guardians shall apply to\nstandby guardians, except insofar as this section provides otherwise.\n 3. (a) A petition for the judicial appointment of a standby guardian\nof the person and/or property of an infant pursuant to this subdivision\nmay be made only by a parent, a legal guardian of the infant or a legal\ncustodian of the infant; or where the infant is not residing with a\nparent, legal guardian or legal custodian and, to the satisfaction of\nthe court, such parent, legal guardian or legal custodian cannot be\nlocated with due diligence, the primary caretaker of such infant may\npetition for a judicial appointment of such standby guardian.\nApplication for standing to petition as a primary caretaker shall be\nupon motion to the court upon notice to such parties as the court may\ndirect.\n (b) A petition for the judicial appointment of a standby guardian of\nan infant shall, in addition to meeting the requirements of section\nseventeen hundred four of this article:\n (i) State whether the authority of the standby guardian is to become\neffective upon the petitioner's incapacity, upon the petitioner's death,\nupon the petitioner's consent, or upon the petitioner's administrative\nseparation accompanied by his or her consent required pursuant to the\nprovisions of subdivision seven of this section, or upon whichever\noccurs first;\n (ii) State that the petitioner suffers from (A) a progressively\nchronic illness; (B) an irreversibly fatal illness and the basis for\nsuch statement, such as the date and source of a medical diagnosis,\nwithout requiring the identification of the illness in question, or (C)\nstate that the petitioner may become subject to administrative\nseparation and the basis for such statement.\n (c) Upon a petition for the judicial appointment of a standby guardian\nof an infant pursuant to paragraph (a) of this subdivision or for the\njudicial appointment of a guardian pursuant to paragraph (d) of\nsubdivision four of this section, the court shall conduct a hearing. The\ncourt may in its discretion dispense with a hearing for the appointment\nof a standby guardian, and may in its discretion appoint a guardian ad\nlitem or an attorney for the infant to recommend whether the appointment\nof a standby guardian as proposed in the application is in the best\ninterest of the infant.\n (d) (i) If the court finds that the petitioner suffers from a\nprogressively chronic illness or an irreversibly fatal illness, or finds\nthat the petitioner may become subject to administrative separation, and\nthat the interests of the infant will be promoted by the appointment of\na standby guardian of the person and/or property it must make a decree\naccordingly.\n (ii) Such decree shall specify whether the authority of the standby\nguardian is effective upon the receipt of a determination of the\npetitioner's incapacity, upon the receipt of the certificate of the\npetitioner's death, or other such evidence of death that may be\nsatisfactory to the court, or upon the receipt of documentation of the\npetitioner's administrative separation, and receipt of the petitioner's\nconsent to the commencement of the standby guardian's authority required\npursuant to the provisions of subdivision seven of this section, or upon\nwhichever occurs first. The decree shall also provide that the authority\nof the standby guardian may earlier become effective upon written\nconsent of the parent pursuant to subparagraph (iv) of paragraph (e) of\nthis subdivision.\n (iii) If at any time prior to the commencement of the authority of the\nstandby guardian the court finds that the requirements of subparagraph\n(i) of this paragraph are no longer satisfied, it may rescind such\ndecree.\n (e) (i) Where the decree provides that the authority of the standby\nguardian is effective upon receipt of a determination of the\npetitioner's incapacity, the standby guardian's authority shall commence\nupon the standby guardian's receipt of a copy of a determination of\nincapacity made pursuant to subdivision six of this section. The standby\nguardian shall file a copy of the determination of incapacity with the\ncourt that issued the decree within ninety days of the date of receipt\nof such determination or the standby guardian's authority may be\nrescinded by the court.\n (ii) Where the decree provides that the authority of the standby\nguardian is effective upon receipt of a certificate of the petitioner's\ndeath, or other such evidence of death that may be satisfactory to the\ncourt, the standby guardian's authority shall commence upon the standby\nguardian's receipt of a certificate of death, or other such evidence of\ndeath as may be specified in the decree. The standby guardian shall file\nthe certificate of death, or other such evidence of death, with the\ncourt that issued the decree within ninety days of the date of the\npetitioner's death or the standby guardian's authority may be rescinded\nby the court.\n (iii) Where the decree provides that the authority of the standby\nguardian is effective upon the standby guardian's receipt of\ndocumentation of the petitioner's administrative separation, the standby\nguardian's authority shall commence upon the standby guardian's receipt\nof documentation of the petitioner's administrative separation pursuant\nto subdivision seven of this section, and receipt of the petitioner's\nconsent to the commencement of the standby guardian's authority as\nrequired pursuant to the provisions of subdivision seven of this\nsection. The standby guardian shall file the documentation of\nadministrative separation with the court that issued the decree within\nsixty days of the date of the standby guardian's receipt of\ndocumentation of the petitioner's administrative separation or the\nstandby guardian's authority may be rescinded by the court.\n (iv) Notwithstanding subparagraphs (i) and (ii) of this paragraph, a\nstandby guardian's authority shall commence upon the standby guardian's\nreceipt of the petitioner's written consent to such commencement, signed\nby the petitioner in the presence of two witnesses at least eighteen\nyears of age, other than the standby guardian, who shall also sign the\nwriting. Another person may sign the written consent on the petitioner's\nbehalf and at the petitioner's direction if the petitioner is physically\nunable to do so, provided such consent is signed in the presence of the\npetitioner and the witnesses. The standby guardian shall file the\nwritten consent with the court that issued the decree within ninety days\nof the date of receipt of such written consent or the standby guardian's\nauthority may be rescinded by the court.\n (f) The petitioner may revoke a standby guardianship created under\nthis subdivision by executing a written revocation, filing it with the\ncourt that issued the decree, and promptly notifying the standby\nguardian of the revocation.\n (g) A person judicially appointed standby guardian pursuant to this\nsubdivision may at any time before the commencement of his or her\nauthority renounce the appointment by executing a written renunciation\nand filing it with the court that issued the decree, and promptly\nnotifying the petitioner of the revocation.\n 4. (a) A parent, a legal guardian, a legal custodian, or primary\ncaretaker under the circumstances described in paragraph (a) of\nsubdivision three of this section or under circumstances described in\nsubparagraph (i) of paragraph (b) of this subdivision may designate a\nstandby guardian by means of a written designation, signed by the\nparent, legal guardian, legal custodian or primary caretaker in the\npresence of two witnesses at least eighteen years of age, other than the\nstandby guardian, who shall also sign the writing. Another person may\nsign the written designation on the parent's, legal guardian's, legal\ncustodian's or primary caretaker's behalf and at the parent's, legal\nguardian's, legal custodian's or primary caretaker's direction if the\nparent, legal guardian, legal custodian or primary caretaker is\nphysically unable to do so, provided the designation is signed in the\npresence of the parent, legal guardian, legal custodian or primary\ncaretaker and the witnesses.\n (b) (i) A designation of a standby guardian shall identify the parent,\nlegal guardian, legal custodian or primary caretaker, the infant and the\nperson designated to be the standby guardian, and shall indicate that\nthe parent, legal guardian, legal custodian or primary caretaker intends\nfor the standby guardian to become the infant's guardian in the event\nthe parent, legal guardian, legal custodian or primary caretaker either:\n(A) becomes incapacitated; (B) becomes debilitated and consents to the\ncommencement of the standby guardian's authority; (C) becomes subject to\nan administrative separation and consents to the commencement of the\nstandby guardian's authority as required pursuant to the provisions of\nsubdivision seven of this section; or (D) dies prior to the commencement\nof a judicial proceeding to appoint a guardian of the person and/or\nproperty of an infant.\n (ii) A parent, legal guardian, legal custodian or primary caretaker\nmay designate an alternate standby guardian in the same writing, and by\nthe same manner, as the designation of a standby guardian.\n (iii) A designation may, but need not, be in the following form:\n Designation of Standby Guardian\n (NOTE: As used in this form, the term "parent" shall include a\n parent, a court-appointed guardian of an infant's person or\n property, a legal custodian, or a primary caretaker, and the term\n "child(ren)" shall include the dependant infant of a parent,\n court-appointed guardian, legal custodian or primary caretaker\n I (name of parent) hereby designate (name, home address and\n telephone number of standby guardian) as standby guardian of\n the person and property of my child(ren) (name of child(ren)).\n (You may, if you wish, provide that the standby guardian's\n authority shall extend only to the person, or only to the\n property, of your child, by crossing out "person" or\n "property", whichever is inapplicable, above.)\n The appointment of ___________ as the standby guardian of\n the person and property of my child(ren) would be in the best\n interests of my child(ren) because: (Insert justification for\n appointment of this person as the standby guardian) __________\n ______________________________________________________________\n ____________________________________________________________ .\n The standby guardian's authority shall take effect: (1) if\n my doctor concludes in writing that I am mentally\n incapacitated, and thus unable to care for my child(ren); (2)\n if my doctor concludes in writing that I am physically\n debilitated, and thus unable to care for my child(ren) and I\n consent in writing, before two witnesses, to the standby\n guardian's authority taking effect; (3) If I become subject to\n an administrative separation such that care and supervision of\n the child will be interrupted or cannot be provided; or (4)\n upon my death.\n In the event the person I designate above is unable or\n unwilling to act as guardian for my child(ren), I hereby\n designate (name, home address and telephone number of\n alternate standby guardian), as standby guardian of my\n child(ren).\n I also understand that my standby guardian's authority will\n cease sixty days after commencing unless by such date he or\n she petitions the court for appointment as guardian.\n I understand that I retain full parental, guardianship,\n custodial or caretaker rights even after the commencement of\n the standby guardian's authority, and may revoke the standby\n guardianship at any time.\n Signature: ________________________________________________\n Address: __________________________________________________\n Date: _____________________________________________________\n I declare that the person whose name appears above signed\n this document in my presence, or was physically unable to sign\n and asked another to sign this document, who did so in my\n presence. I further declare that I am at least eighteen years\n old and am not the person designated as standby guardian.\n Witness' Signature: _______________________________________\n Address: __________________________________________________\n Date: _____________________________________________________\n Witness' Signature: _______________________________________\n Address: __________________________________________________\n Date: _____________________________________________________\n (iv) Notwithstanding paragraphs (a) and (b) of this subdivision, a\ndesignation of standby guardian shall be effective as if made in\naccordance with the requirements of this subdivision if it was validly\nmade: (a) where the parent, legal guardian, legal custodian or primary\ncaretaker was domiciled at the time it was executed; (b) in the\njurisdiction where it was executed or (c) where the parent, legal\nguardian, legal custodian or primary caretaker is domiciled at the time\nthe designation becomes effective.\n (c) The authority of the standby guardian under a designation shall\ncommence upon either: (i) the standby guardian's receipt of a copy of a\ndetermination of incapacity made pursuant to subdivision six of this\nsection; (ii) the standby guardian's receipt of (A) a copy of a\ndetermination of debilitation made pursuant to subdivision six of this\nsection and (B) a copy of the parent's, legal guardian's, legal\ncustodian's or primary caretaker's written consent to such commencement,\nsigned by the parent, legal guardian, legal custodian or primary\ncaretaker in the presence of two witnesses at least eighteen years of\nage, other than the standby guardian, who shall also sign the writing.\nAnother person may sign the written consent on the parent's, legal\nguardian's, legal custodian's or primary caretaker's behalf and at the\nparent's, legal guardian's, legal custodian's or primary caretaker's\ndirection if the parent, legal guardian, legal custodian or primary\ncaretaker is physically unable to do so, provided such consent is signed\nin the presence of the parent, legal guardian, legal custodian or\nprimary caretaker and the witnesses; (iii) an administrative separation\nand consent as required pursuant to the provisions of subdivision seven\nof this section or (iv) the standby guardian's receipt of a certificate\nof death, funeral home receipt or other such document indicating that\nthe parent, legal guardian, legal custodian or primary caretaker has\ndied. The standby guardian shall file a petition pursuant to paragraph\n(d) of this subdivision within sixty days of the date of its\ncommencement pursuant to this paragraph or such standby guardian's\nauthority shall cease after such date, but shall recommence upon such\nfiling.\n (d) The standby guardian may file a petition for appointment as\nguardian after receipt of either: (i) a copy of a determination of\nincapacity made pursuant to subdivision six of this section; or (ii) (A)\na copy of a determination of debilitation made pursuant to subdivision\nsix of this section and (B) a copy of the parent's, legal guardian's,\nlegal custodian's or primary caretaker's written consent, pursuant to\nparagraph (c) of this subdivision; (iii) documentation of an\nadministrative separation and consent as required pursuant to the\nprovisions of subdivision seven of this section; or (iv) a certificate\nof death, or other such evidence of death that may be satisfactory to\nthe court. Such petition must, in addition to meeting the requirements\nof section seventeen hundred four of this article:\n (i) append the written designation of such person as standby guardian;\nand\n (ii) append a copy of: (A) the determination of incapacity of the\nparent, legal guardian, legal custodian or primary caretaker; or (B) the\ndetermination of debilitation and the parental, guardian's, custodian's\nor caretaker's consent; (C) documentation of an administrative\nseparation and consent as required pursuant to the provisions of\nsubdivision seven of this section; or (D) a copy of the parent's, legal\nguardian's, legal custodian's or primary caretaker's death certificate,\nor other such evidence of death that may be satisfactory to the court;\nand\n (iii) if the petition is by a person designated as alternate standby\nguardian, state that the person designated as standby guardian is\nunwilling or unable to act as standby guardian, and the basis for such\nstatement.\n (e) Subject to the provisions of paragraph (c) of subdivision three of\nthis section, if the court finds that the petitioner was duly designated\nas standby guardian, that the parent, legal guardian, legal custodian or\nprimary caretaker of the infant is (i) incapacitated, (ii) debilitated\nand consents, (iii) has become subject to an administrative separation\nand consents as required pursuant to the provisions of subdivision seven\nof this section, or (iv) has died, as established by a copy of a death\ncertificate or other such evidence of death as may be satisfactory to\nthe court, that the interests of the infant will be promoted by the\nappointment of a standby guardian of the person and/or property, and\nthat, if the petition is by a person designated as alternate standby\nguardian, the person designated as standby guardian is unwilling or\nunable to act as standby guardian, it must make a decree accordingly.\nPrior to making its finding, the court may, in its discretion, appoint\nan attorney for the infant to recommend whether the appointment of the\nstandby guardian as proposed in the petition is in the best interests of\nthe infant.\n (f) The parent, legal guardian, legal custodian or primary caretaker\nmay revoke a standby guardianship created under this subdivision: (i) by\nexecuting a subsequent designation of guardianship pursuant to\nparagraphs (a) and (b) of this subdivision, or (ii) notwithstanding the\nprovisions of sections seventeen hundred ten and seventeen hundred\neleven of this article, in the case of a standby guardian whose\nauthority becomes effective upon the death of the parent, legal\nguardian, legal custodian or primary caretaker of the infant, by a\nsubsequent designation of standby guardian set forth in a will of the\nparent, legal guardian, legal custodian or primary caretaker, or (iii)\nby notifying the standby guardian verbally or in writing or by any other\nact evidencing a specific intent to revoke the standby guardianship\nprior to the filing of a petition. Where the petition has already been\nfiled, by executing a written revocation, filing it with the court where\nthe petition was filed, and promptly notifying the standby guardian of\nthe revocation.\n 5. The standby guardian may also file a petition for appointment as\nguardian in any other manner permitted by this article or article six of\nthe family court act, on notice to the parent, legal guardian, legal\ncustodian or primary caretaker and may append a designation of standby\nguardian to the petition for consideration by the court in the\ndetermination of such petition.\n 6. (a) A determination of incapacity or debilitation must: (i) be made\nby the attending physician to a reasonable degree of medical certainty;\n(ii) be in writing; and (iii) contain the attending physician's opinion\nregarding the cause and nature of the parent's, legal guardian's, legal\ncustodian's or primary caretaker's incapacity or debilitation as well as\nits extent and probable duration. The attending physician shall provide\na copy of the determination of incapacity or debilitation to the standby\nguardian, if the standby guardian's identity is known to the physician.\n (b) If requested by the standby guardian, an attending physician shall\nmake a determination regarding the parent's, legal guardian's, legal\ncustodian's or primary caretaker's incapacity or debilitation for\npurposes of this section.\n (c) The standby guardian shall ensure that the parent, legal guardian,\nlegal custodian or primary caretaker is informed of the commencement of\nthe standby guardian's authority as a result of a determination of\nincapacity and of the parent's, legal guardian's, legal custodian's or\nprimary caretaker's right to revoke such authority promptly after\nreceipt of the determination of incapacity, provided there is any\nindication of the person's ability to comprehend such information.\n 7. Documentation of an administrative separation (a) shall consist of\nan administrative order, judicial order, affidavit or affirmation\nindicating the parent, legal guardian, legal custodian or primary\ncaretaker's administrative separation as defined in this section and (b)\nshall be accompanied by written consent of the parent, legal guardian,\nlegal custodian, or primary caretaker, signed by the parent, legal\nguardian, legal custodian, or primary caretaker in the presence of two\nwitnesses at least eighteen years of age, other than the standby\nguardian, who shall also sign the writing. Consent contained in the\nformal petition submitted pursuant to subdivision three of this section\nor the written designation made pursuant to subdivision four of this\nsection shall be sufficient to satisfy the requirement for consent set\nforth in this subdivision.\n 8. The commencement of the standby guardian's authority pursuant to a\ndetermination of incapacity, determination of debilitation,\nadministrative separation, or consent shall not, itself, divest the\nparent, legal guardian, legal custodian or primary caretaker of any\nparental, guardianship, custodial or caretaker rights, but shall confer\nupon the standby guardian concurrent authority with respect to the\ninfant.\n 9. (a) The clerk of any county upon being paid the fees allowed\ntherefor by law shall receive for filing any instrument appointing or\ndesignating a standby guardian pursuant to this section made by a\ndomiciliary of the county, and shall give a written receipt therefor to\nthe person delivering it. The filing of an appointment or designation of\nstandby guardian shall be for the sole purpose of safekeeping and shall\nnot affect the validity of the appointment or designation.\n (b) The appointment or designation shall be delivered only to: (i) the\nparent, legal guardian, legal custodian or primary caretaker who\nappointed or designated the standby guardian; (ii) the standby guardian\nor alternate standby guardian; (iii) the person designated as standby\nguardian or alternate standby guardian; or (iv) any other person\ndirected by the court.\n