N.Y. Surrogate's Court Procedure Act § 1726: Standby guardians 1

§ 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, administrative separation, 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, administrative separation, 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.

(f) "Administrative separation" means a parent, legal guardian, legal

custodian or primary caretaker's (i) in connection with a federal

immigration matter: arrest, detention, incarceration, removal and/or

deportation; or (ii) receipt of official communication by federal,

state, or local authorities regarding immigration enforcement which

gives reasonable notice that care and supervision of the child by the

parent, legal guardian, legal custodian, or primary caretaker will be

interrupted or cannot be provided.

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 the petitioner's administrative

separation accompanied by his or her consent required pursuant to the

provisions of subdivision seven of this section, or upon whichever

occurs first;

(ii) State that the petitioner suffers from (A) a progressively

chronic illness; (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, or (C)

state that the petitioner may become subject to administrative

separation and the basis for such statement.

(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 or an attorney for the infant 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, or finds

that the petitioner may become subject to administrative separation, 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 the receipt of documentation of the

petitioner's administrative separation, and receipt of the petitioner's

consent to the commencement of the standby guardian's authority required

pursuant to the provisions of subdivision seven of this section, or upon

whichever occurs first. The decree shall also provide that the authority

of the standby guardian may earlier become effective upon written

consent of the parent pursuant to subparagraph (iv) 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) Where the decree provides that the authority of the standby

guardian is effective upon the standby guardian's receipt of

documentation of the petitioner's administrative separation, the standby

guardian's authority shall commence upon the standby guardian's receipt

of documentation of the petitioner's administrative separation pursuant

to subdivision seven of this section, and receipt of the petitioner's

consent to the commencement of the standby guardian's authority as

required pursuant to the provisions of subdivision seven of this

section. The standby guardian shall file the documentation of

administrative separation with the court that issued the decree within

sixty days of the date of the standby guardian's receipt of

documentation of the petitioner's administrative separation or the

standby guardian's authority may be rescinded by the court.

(iv) 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 or under circumstances described in

subparagraph (i) of paragraph (b) of this subdivision 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; (C) becomes subject to

an administrative separation and consents to the commencement of the

standby guardian's authority as required pursuant to the provisions of

subdivision seven of this section; or (D) 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.

(iii) A designation may, but need not, be in the following form:

Designation of Standby Guardian

(NOTE: As used in this form, the term "parent" shall include a

parent, a court-appointed guardian of an infant's person or

property, a legal custodian, or a primary caretaker, and the term

"child(ren)" shall include the dependant infant of a parent,

court-appointed guardian, legal custodian or primary caretaker

I (name of parent) hereby designate (name, home address and

telephone number of standby guardian) as standby guardian of

the person and property of my child(ren) (name of child(ren)).

(You may, if you wish, provide that the standby guardian's

authority shall extend only to the person, or only to the

property, of your child, by crossing out "person" or

"property", whichever is inapplicable, above.)

The appointment of ___________ as the standby guardian of

the person and property of my child(ren) would be in the best

interests of my child(ren) because: (Insert justification for

appointment of this person as the standby guardian) __________

______________________________________________________________

____________________________________________________________ .

The standby guardian's authority shall take effect: (1) if

my doctor concludes in writing that I am mentally

incapacitated, and thus unable to care for my child(ren); (2)

if my doctor concludes in writing that I am physically

debilitated, and thus unable to care for my child(ren) and I

consent in writing, before two witnesses, to the standby

guardian's authority taking effect; (3) If I become subject to

an administrative separation such that care and supervision of

the child will be interrupted or cannot be provided; or (4)

upon my death.

In the event the person I designate above is unable or

unwilling to act as guardian for my child(ren), I hereby

designate (name, home address and telephone number of

alternate standby guardian), as standby guardian of my

child(ren).

I also understand that my standby guardian's authority will

cease sixty days after commencing unless by such date he or

she petitions the court for appointment as guardian.

I understand that I retain full parental, guardianship,

custodial or caretaker rights even after the commencement of

the standby guardian's authority, and may revoke the standby

guardianship at any time.

Signature: ________________________________________________

Address: __________________________________________________

Date: _____________________________________________________

I declare that the person whose name appears above signed

this document in my presence, or was physically unable to sign

and asked another to sign this document, who did so in my

presence. I further declare that I am at least eighteen years

old and am not the person designated as standby guardian.

Witness' Signature: _______________________________________

Address: __________________________________________________

Date: _____________________________________________________

Witness' Signature: _______________________________________

Address: __________________________________________________

Date: _____________________________________________________

(iv) Notwithstanding paragraphs (a) and (b) of this subdivision, a

designation of standby guardian shall be effective as if made in

accordance with the requirements of this subdivision if it was validly

made: (a) where the parent, legal guardian, legal custodian or primary

caretaker was domiciled at the time it was executed; (b) in the

jurisdiction where it was executed or (c) where the parent, legal

guardian, legal custodian or primary caretaker is domiciled at the time

the designation becomes effective.

(c) The authority of the standby guardian under a designation shall

commence upon either: (i) the standby guardian's receipt of a copy of a

determination of incapacity made pursuant to subdivision six of this

section; (ii) the standby guardian's receipt of (A) a copy of a

determination of debilitation made pursuant to subdivision six of this

section and (B) a copy of the parent's, legal guardian's, legal

custodian's or primary caretaker's written consent to such commencement,

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 consent 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 such consent is signed

in the presence of the parent, legal guardian, legal custodian or

primary caretaker and the witnesses; (iii) an administrative separation

and consent as required pursuant to the provisions of subdivision seven

of this section or (iv) the standby guardian's receipt of a certificate

of death, funeral home receipt or other such document indicating that

the parent, legal guardian, legal custodian or primary caretaker has

died. The standby guardian shall file a petition pursuant to paragraph

(d) of this subdivision within sixty days of the date of its

commencement pursuant to this paragraph or such standby guardian's

authority shall cease after such date, but shall recommence upon such

filing.

(d) The standby guardian may file a petition for appointment as

guardian after receipt of either: (i) a copy of a determination of

incapacity made pursuant to subdivision six of this section; or (ii) (A)

a copy of a determination of debilitation made pursuant to subdivision

six of this section and (B) a copy of the parent's, legal guardian's,

legal custodian's or primary caretaker's written consent, pursuant to

paragraph (c) of this subdivision; (iii) documentation of an

administrative separation and consent as required pursuant to the

provisions of subdivision seven of this section; or (iv) a certificate

of death, or other such evidence of death that may be satisfactory to

the court. Such petition must, in addition to meeting the requirements

of section seventeen hundred four of this article:

(i) append the written designation of such person as standby guardian;

and

(ii) append a copy of: (A) the determination of incapacity of the

parent, legal guardian, legal custodian or primary caretaker; or (B) the

determination of debilitation and the parental, guardian's, custodian's

or caretaker's consent; (C) documentation of an administrative

separation and consent as required pursuant to the provisions of

subdivision seven of this section; or (D) a copy of the parent's, legal

guardian's, legal custodian's or primary caretaker's death certificate,

or other such evidence of death that may be satisfactory to the court;

and

(iii) if the petition is by a person designated as alternate standby

guardian, state that the person designated as standby guardian is

unwilling or unable to act as standby guardian, and the basis for such

statement.

(e) Subject to the provisions of paragraph (c) of subdivision three of

this section, if the court finds that the petitioner was duly designated

as standby guardian, that the parent, legal guardian, legal custodian or

primary caretaker of the infant is (i) incapacitated, (ii) debilitated

and consents, (iii) has become subject to an administrative separation

and consents as required pursuant to the provisions of subdivision seven

of this section, or (iv) has died, as established by a copy of a death

certificate or other such evidence of death as may be satisfactory to

the court, that the interests of the infant will be promoted by the

appointment of a standby guardian of the person and/or property, and

that, if the petition is by a person designated as alternate standby

guardian, the person designated as standby guardian is unwilling or

unable to act as standby guardian, it must make a decree accordingly.

Prior to making its finding, the court may, in its discretion, appoint

an attorney for the infant to recommend whether the appointment of the

standby guardian as proposed in the petition is in the best interests of

the infant.

(f) The parent, legal guardian, legal custodian or primary caretaker

may revoke a standby guardianship created under this subdivision: (i) by

executing a subsequent designation of guardianship pursuant to

paragraphs (a) and (b) of this subdivision, or (ii) notwithstanding the

provisions of sections seventeen hundred ten and seventeen hundred

eleven of this article, in the case of a standby guardian whose

authority becomes effective upon the death of the parent, legal

guardian, legal custodian or primary caretaker of the infant, by a

subsequent designation of standby guardian set forth in a will of the

parent, legal guardian, legal custodian or primary caretaker, or (iii)

by notifying the standby guardian verbally or in writing or by any other

act evidencing a specific intent to revoke the standby guardianship

prior to the filing of a petition. Where the petition has already been

filed, by executing a written revocation, filing it with the court where

the petition was filed, and promptly notifying the standby guardian of

the revocation.

5. The standby guardian may also file a petition for appointment as

guardian in any other manner permitted by this article or article six of

the family court act, on notice to the parent, legal guardian, legal

custodian or primary caretaker and may append a designation of standby

guardian to the petition for consideration by the court in the

determination of such petition.

6. (a) A determination of incapacity or debilitation must: (i) be made

by the attending physician to a reasonable degree of medical certainty;

(ii) be in writing; and (iii) contain the attending physician's opinion

regarding the cause and nature of the parent's, legal guardian's, legal

custodian's or primary caretaker's incapacity or debilitation as well as

its extent and probable duration. The attending physician shall provide

a copy of the determination of incapacity or debilitation to the standby

guardian, if the standby guardian's identity is known to the physician.

(b) If requested by the standby guardian, an attending physician shall

make a determination regarding the parent's, legal guardian's, legal

custodian's or primary caretaker's incapacity or debilitation for

purposes of this section.

(c) The standby guardian shall ensure that the parent, legal guardian,

legal custodian or primary caretaker is informed of the commencement of

the standby guardian's authority as a result of a determination of

incapacity and of the parent's, legal guardian's, legal custodian's or

primary caretaker's right to revoke such authority promptly after

receipt of the determination of incapacity, provided there is any

indication of the person's ability to comprehend such information.

7. Documentation of an administrative separation (a) shall consist of

an administrative order, judicial order, affidavit or affirmation

indicating the parent, legal guardian, legal custodian or primary

caretaker's administrative separation as defined in this section and (b)

shall be accompanied by written consent of the parent, legal guardian,

legal custodian, or primary caretaker, 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. Consent contained in the

formal petition submitted pursuant to subdivision three of this section

or the written designation made pursuant to subdivision four of this

section shall be sufficient to satisfy the requirement for consent set

forth in this subdivision.

8. The commencement of the standby guardian's authority pursuant to a

determination of incapacity, determination of debilitation,

administrative separation, or consent shall not, itself, divest the

parent, legal guardian, legal custodian or primary caretaker of any

parental, guardianship, custodial or caretaker rights, but shall confer

upon the standby guardian concurrent authority with respect to the

infant.

9. (a) The clerk of any county upon being paid the fees allowed

therefor by law shall receive for filing any instrument appointing or

designating a standby guardian pursuant to this section made by a

domiciliary of the county, and shall give a written receipt therefor to

the person delivering it. The filing of an appointment or designation of

standby guardian shall be for the sole purpose of safekeeping and shall

not affect the validity of the appointment or designation.

(b) The appointment or designation shall be delivered only to: (i) the

parent, legal guardian, legal custodian or primary caretaker who

appointed or designated the standby guardian; (ii) the standby guardian

or alternate standby guardian; (iii) the person designated as standby

guardian or alternate standby guardian; or (iv) any other person

directed by the court.