No question haunts a parent living with HIV/AIDS as much as, “Who will care for my children if I can’t?”
Long-term stability is critical to the healthy development of children in AIDS-affected families. Pennsylvania’s Standby Guardianship law, which the AIDS Law Project authored, helps terminally ill parents make permanency plans for the future care of their children. A friend or relative can be named as standby guardian. Selecting a standby guardian does not mean that a parent loses any parental rights to his or her children. Rather, the parent has shared custody of the children with the standby guardian. Also, the standby guardian may be able to get cash assistance from the government, while taking care of the children. Standby guardianship is intended for parents who are the sole custodian of their child.
A standby guardian can be named if a child’s other parent is deceased; has had his or her parental rights terminated; whereabouts are unknown; is unwilling or unable to carry out day-to-day childcare decisions concerning the child; or if he or she consents. A standby guardianship becomes effective upon a future “triggering event” that a parent can specify – for example, the triggering event could be admission to the hospital for inpatient treatment or a period of disability. The standby guardianship would end when the hospitalization or period of disability is over.
Death is also a triggering event to give immediate physical and legal custody to a standby guardian. The standby guardian must file with the court within 60 days of the triggering event for approval to continue as the guardian. The law favors the person who has been named standby guardian, particularly in situations where the sole surviving parent has named the standby guardian or the other parent’s parental rights have been terminated.
Pennsylvania’s Standby Guardianship Act, 23 Pa. Cons. Stat. § 5601 et seq.