In 2008, the concept of standby guardianship became law in Delaware. See 13 Del. C. §2361 et seq. Though it has been in effect for some time, many still find the concept of standby guardiship to be unfamiliar. In short, standby guardianship allows a parent or guardian afflicted with a progressive, chronic condition or terminal illness to make arrangements for the future care of their child without terminating their own legal rights. In fact, a standby guardian, if appointed, does not assume his/her role and responsibilities until (i) it is determined that the ill parent or guardian is deceased, incapacitated or debilitated, or (ii) the ill parent or guardian agrees in writing that the standby guardian may assume their role.
The process begins with the filing of a petition for standby guardianship in the Delaware Family Court. As with other forms of guardianship, the Family Court will not grant a petition for the appointment of a standby guardian without making certain determinations. To begin, the Court must find that there is a significant risk that the parent or guardian filing the petition will die or become debilitated within 2 years of the filing of the petition. In addition, the Court must find the petition is in the child’s best interests. Depending on whether the petition is filed by a parent or guardian, the Court must make go on to make additional findings.
If the petitioner is a parent, the Court must find:
(1) The child would be dependent, neglected or abused in the care of the other parent; or
(2) The other parent of the child is deceased; or
(3) The other parent’s parental rights have been terminated; or
(4) The other parent consents to the appointment of a standby guardian.
If the petitioner is the guardian of a child, the Family Court must make certain finding with regard to each of the child’s parents. Specifically, the Court must find:
(1) That the child remains dependent, neglected or abused in the parent’s care; or
(2) The parent of the child is deceased; or
(3) The parent’s parental rights have been terminated; or
(4) The parent consents to the appointment of a standby guardian.
13 Del. C. § 2367.
If or when a standby guardian is appointed and assumes that role, he/she has the authority to exercise the same powers, rights and duties respecting the care, maintenance and treatment of the child as a parent. 13 Del. C. § 2369,13 Del. C. § 2340 .
Leslie Spoltore is an attorney with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or firstname.lastname@example.org.