§ 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.