Summary: In Georgia, a Standby Guardian takes custody of a child in the case of some unforeseen circumstance (mental incapacity, physical debilitation, etc). Siedentopf Law discusses how to select a standby guardian, when that guardian’s authority is activated, and other related issues.
Many people are familiar with the estate planning term “guardianship,” which is where a parent designates a person to care for his or her child in case of death or permanent disability. However, Georgia law does provide a second guardianship option – which is known as a standby guardianship. A standby guardian legally takes custody of a child in the case of some unforeseen circumstance or triggering event. The parent does not relinquish his or her parental rights altogether; they are merely transferring custody because they are unable to care for their child.
Establishing Standby Guardianship: A parent (who has physical custody of their child) can designate a standby guardian by putting his or her wishes in writing; that document also needs to be signed by two witnesses. Neither of the witnesses can be the standby guardian.
The state of Georgia requires that both parents consent to the designation of a standby guardian. However, the court does not need both parents’ consent if the noncustodial parent’s parental rights have been terminated or if the noncustodial parent cannot be located. It is also important to note that standby guardianship does not relieve a parent of their duty to support their child.
Activating Standby Guardianship: A standby guardian’s authority is activated after a “triggering event.” This can be the parent’s mental incapacity, physical debilitation, or some other serious issue the parent has identified. The standby guardian can assume responsibility for the child immediately after they are notified that the triggering event has happened. They assume all the rights, duties, and obligations of guardianship. Georgia law requires that the parent’s doctor documents a triggering event of incapacity or debilitation. Also, the standby guardian has 120 days to file a petition with a Georgia court confirming his or her official appointment as the child’s guardian.
Depending on their mental or physical health, a parent can continue to communicate with a standby guardian after the guardian has assumed the responsibility of the child. They can discuss the child’s care and welfare.
Withdrawing Standby Guardianship: A parent can revoke who he or she has named as a standby guardian. Prior to the triggering event, the parent can destroy the written designation, or they can prepare a written revocation which must be signed by two witnesses and the person no longer serving as standby guardian. If a parent wants to revoke after the triggering event, he or she must file a notice of revocation with the court and mail a copy of the notice to the standby guardian.
Why a Standby Guardianship: A designation of guardian in a will comes into effect only when the parent dies. A will that designates a guardian has no effect whatsoever while the parent is still alive. However, there are situations in which a child might need a guardian while the parent is still alive. The standby guardianship addresses this issue and provides added protection for children.
For more information on standby guardianships, or if you are interested in establishing a standby guardian for your child, visit the Siedentopf Law’s website at EstateLawAtlanta.com or call us today at (404) 736-6066.
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