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Total Life Choices (TLC) provides free legal services to promote and protect the dignity of each individual.  TLC attorneys and volunteers empower individuals in articulating and documenting crucial lifetime, incapacity, and end-of-life choices through education and legal planning.  TLC counsels families on complex court procedures for probate, administration and guardianship.

 

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Total Life Choices (TLC)
New York Legal Assistance Group
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Standby Guardianship (Surrogate’s Court Procedure Law § 1726)

SCP § 1726. Standby guardians

1.    For the purpose of this section:

(a)    “Standby guardian” means (i) a person judicially appointed pursuant to subdivision three of this section as standby guardian of the person and/or property of an infant whose authority becomes  effective upon the incapacity or death of the infant’s parent, legal guardian, legal custodian or primary caretaker or upon the consent of the  parent, legal  guardian, legal custodian or primary caretaker; and (ii) a person designated pursuant to subdivision four of this section as standby guardian whose authority becomes effective upon the death or incapacity of the infant’s parent,  legal guardian, legal custodian or primary caretaker or upon the debilitation and consent of the parent, legal guardian, legal custodian or primary caretaker.
(b)    “Legal guardian” means the court-appointed guardian of the infant’s person and/or property.
(c)    “Attending physician” means the physician who has primary responsibility for the treatment and care of the infant’s parent, legal guardian, legal custodian or primary caretaker. Where more than one physician shares such responsibility, or where a physician is acting on the attending physician’s behalf, any such physician may act as the attending physician pursuant to this section. Where no physician has such responsibility, any physician who is familiar with the parent’s, legal guardian’s, legal custodian’s or primary caretaker’s medical condition may act as the attending physician pursuant to this section.
(d)    “Debilitation” means a chronic and substantial inability to care for one’s dependent infant, as a result of (i) a progressively chronic or irreversibly fatal illness, or (ii) a physically debilitating illness, disease or injury. “Debilitated” means the state of having a debilitation.
(e)    “Incapacity” means a chronic and substantial inability, as a result of mental impairment, to understand the nature and consequences of decisions concerning the care of one’s dependent infant, and a consequent inability to care for such infant. “Incapacitated” means the state of having an incapacity.

2.    The provisions of this article relating to guardians shall apply to standby guardians, except insofar as this section provides otherwise.

3.    (a)   A petition for the judicial appointment of a standby guardian of the person and/or property of an infant pursuant to this subdivision may be made only by a parent, a legal guardian of the infant or a legal custodian of the infant; or where the infant is not residing with a parent, legal guardian or legal custodian and, to the satisfaction of the court, such parent, legal guardian or legal custodian cannot be located with due diligence, the primary caretaker of such infant may petition for a judicial appointment of such standby guardian. Application for standing to petition as a primary caretaker shall be upon motion to the court upon notice to such parties as the court may direct.

(b)  A petition for the judicial appointment of a standby guardian of an infant shall, in addition to meeting the requirements of section seventeen hundred four of this article:

(i)       State whether the authority of the standby guardian is to become effective upon the petitioner’s incapacity, upon the petitioner’s death, upon the petitioner’s consent, or upon whichever occurs first;
(ii)    State that the petitioner suffers from (A) a progressively chronic illness or (B) an irreversibly fatal illness and the basis for such statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question.

(c)  Upon a petition for the judicial appointment of a standby guardian of an infant pursuant to paragraph (a) of this subdivision or for the judicial appointment of a guardian pursuant to paragraph (d) of subdivision four of this section, the court shall conduct a hearing. The court may in its discretion dispense with a hearing for the appointment of a standby guardian, and may in its discretion appoint a guardian ad litem to recommend whether the appointment of a standby guardian as proposed in the application is in the best interest of the infant.

(d)    (i)   If  the  court  finds  that  the  petitioner  suffers  from  a progressively  chronic illness or an irreversibly fatal illness and that the interests of the infant will be promoted by  the  appointment  of  a standby  guardian  of  the  person and/or property it must make a decree accordingly.

 (ii)  Such decree shall specify whether the authority  of  the  standby guardian  is  effective  upon       the receipt of a determination of the petitioner’s incapacity, upon the receipt  of  the  certificate  of  the petitioner’s death, or other such evidence of death that may be satisfactory to the court, or upon whichever occurs first, and shall also provide that the authority  of the standby guardian may earlier become effective upon written consent of the parent pursuant to subparagraph (iii) of paragraph (e) of this subdivision.
 (iii) If at any time prior to the commencement of the authority of the standby guardian the court finds that the requirements of subparagraph (i) of this paragraph are no longer satisfied, it may rescind such decree.

(e)    (i)   Where the decree provides that the authority of the standby guardian is effective upon receipt of a determination of the petitioner’s incapacity, the standby guardian’s authority shall commence upon the standby guardian’s receipt of a copy of a determination of incapacity made pursuant to subdivision six of this section. The standby guardian shall file a copy of the determination of incapacity with the court that issued the decree within ninety days of the date of receipt of such determination or the standby guardian’s authority may be rescinded by the court.

(ii)   Where the decree provides that the authority of the standby guardian is effective upon receipt of a certificate of the petitioner’s death, or other such evidence of death that may be satisfactory to the court, the standby guardian’s authority shall commence upon the standby guardian’s receipt of a certificate of death, or other such evidence of death as may be specified in the decree. The standby guardian shall file the certificate of death, or other such evidence of death, with the court that issued the decree within ninety days of the date of the petitioner’s death or the standby guardian’s authority may be rescinded by the court.
(iii)    Notwithstanding subparagraphs (i) and (ii) of this paragraph, a standby guardian’s authority shall commence upon the standby guardian’s receipt of the petitioner’s written consent to such commencement, signed by the petitioner in the presence of two witnesses at least eighteen years of age, other than the standby guardian, who shall also sign the writing. Another person may sign the written consent on the petitioner’s behalf and at the petitioner’s direction if the petitioner is physically unable to do so, provided such consent is signed in the presence of the petitioner and the witnesses. The standby guardian shall file the written consent with the court that issued the decree within ninety days of the date of receipt of such written consent or the standby guardian’s authority may be rescinded by the court.

(f)    The petitioner may revoke a standby guardianship created under this subdivision by executing a written revocation, filing it with the court that issued the decree, and promptly notifying the standby guardian of the revocation.
(g)    A person judicially appointed standby guardian pursuant to this subdivision may at any time before the commencement of his or her authority renounce the appointment by executing a written renunciation and filing it with the court that issued the decree, and promptly notifying the petitioner of the revocation.

4.    (a) A parent, a legal guardian, a legal custodian, or primary caretaker under the circumstances described in paragraph (a) of subdivision three of this section may designate a standby guardian by means of a written designation, signed by the parent, legal guardian, legal custodian or primary caretaker in the presence of two witnesses at least eighteen years of age, other than the standby guardian, who shall also sign the writing. Another person may sign the written designation on the parent’s, legal guardian’s, legal custodian’s or primary caretaker’s behalf and at the parent’s, legal guardian’s, legal custodian’s or primary caretaker’s direction if the parent, legal guardian, legal custodian or primary caretaker is physically unable to do so, provided the designation is signed in the presence of the parent, legal guardian, legal custodian or primary caretaker and the witnesses.

(b)    (i)   A designation of a standby guardian shall identify the parent, legal guardian, legal custodian or primary caretaker, the infant and the person  designated  to  be the standby guardian, and shall indicate that the parent, legal guardian, legal custodian or primary caretaker intends for the standby guardian to become the infant’s guardian  in  the  event the parent, legal guardian, legal custodian or primary caretaker either:(A)  becomes  incapacitated; (B) becomes debilitated and consents to the commencement of the standby guardian’s authority; or (C) dies  prior  to the  commencement  of a judicial proceeding to appoint a guardian of the person and/or property of an infant.

(ii)   A parent, legal guardian, legal custodian  or  primary  caretaker may  designate an alternate standby guardian in the same writing, and by the same manner, as the designation of a standby guardian.

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