CHAPTER 222

FORMERLY

HOUSE BILL NO. 209

AS AMENDED BY

SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 13 OF THE DELAWARE CODE RELATING TO GUARDIANSHIP OF A CHILD.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Section 1. Amend Chapter 23 of Title 13 of the Delaware Code by creating a new Subchapter VI, entitled Standby Guardianships as follows

“SUBCHAPTER VI. STANDBY GUARDIANSHIPS

§ 2361. Legislative intent, findings and purpose

The General Assembly hereby declares that there is a need to create an expeditious manner of establishing a guardianship known as standby guardianship, in order to enable a parent, custodian, or guardian suffering from a progressive chronic condition or a terminal illness to make plans for the permanent future care or the interim care of a child without terminating parental or legal rights.

§ 2362. Definitions

In addition to the definitions provided for in this Chapter, as used in this subchapter:

(1) ‘Appointed standby guardian’ means a person appointed pursuant to this subchapter to assume the powers and duties of guardianship of a child upon the death or determination of incapacity or debilitation of the parent, custodian, or guardian.

(2) ‘Attending physician’ means the physician who has primary responsibility for the treatment and care of the parent, custodian or guardian. 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. If no physician has responsibility for the care and treatment of the parent, custodian, or guardian, any physician who is familiar with the parent’s, custodian’s, or guardian’s medical condition may act as the attending physician.

(3) ‘Custodian’ means a non-parent who has been awarded custody of a child by order of the Family Court, but excludes the Department of Services for Children, Youth and Their Families when it or any of its divisions have been awarded custody by order of the Family Court.

(4) ‘Debilitation’ means a person’s chronic and substantial inability, as a result of a terminal illness, disease or injury, to care for a child. ‘Debilitated’ means a person’s state of chronic and substantial inability, as a result of a terminal illness, disease or injury to care for a child.

(5) ‘Designated standby guardian’ means a person designated pursuant to this subchapter to assume temporarily the duties of guardianship of a child upon the death or a determination of incapacity or debilitation of the parent, custodian or guardian.

(6) ‘Designator’ means a parent, custodian or guardian who makes a designation of a standby guardian.

(7) ‘Determination of debilitation’ means a written determination made by the attending physician which contains the physician’s opinion to a reasonable degree of medical certainty regarding the nature, cause, extent and probable duration of the parent’s, custodian’s or guardian’s debilitation.

(8) ‘Determination of incapacity’ means a written determination made by the attending physician which contains the physician’s opinion to a reasonable degree of medical certainty regarding the nature, cause, extent and probable duration of the parent’s, custodian’s or guardian’s incapacity.

(9) ‘Incapacity’ means a person’s chronic and substantial inability, as a result of mental impairment, to understand the nature and consequences of decisions concerning the care of the child, and a consequent inability to care for the child. ‘Incapacitated’ means a state of chronic and substantial inability, as a result of mental impairment, to understand the nature and consequences of decisions concerning the care of the child, and a consequent inability to care for the child.

(10) ‘Triggering event’ means an event in the designation, petition or decree which empowers the standby guardian to assume the duties of the office, which event may be the death, incapacity, or debilitation of the parent, custodian, or guardian, whichever occurs first.

§ 2363. Jurisdiction and venue

(a) The Family Court shall have jurisdiction over proceedings under this Chapter to grant, modify and/or terminate standby guardianship.

(b) A petition for standby guardianship under this Chapter may be filed in the Family Court of any of the following counties:

(1) The county in which one (1) natural parent resides;

(2) The county in which a legal guardian of the child resides; or

(3) The county in which one child resides.

§ 2364. Hearing Procedure and Notice Requirements

The procedure and notice requirements set forth in § 2325 of this Chapter shall apply. However, upon motion and good cause shown, the parent, custodian or guardian who has become incapacitated or debilitated need not personally appear for such noticed hearings.

§ 2365. Persons eligible to petition for guardianship

Any parent, custodian or guardian may petition the Family Court for a standby guardianship order regarding a child for whom they have been given legal responsibility.

§ 2366. Contents of Standby Guardianship Petition

A petition for standby guardianship shall contain all of the information required by § 2322 of this Chapter, as well as the following information:

(a) Name and address of the custodian or guardian of the child, if not otherwise provided for in the petition;

(b) In addition to the name and address of the proposed standby guardian;

(c) Which triggering event or events shall cause the authority of the appointed standby guardian to become effective;

(d) That there is a significant risk that the parent, custodian or guardian will die, become incapacitated or become debilitated within two (2) years of the filing of the petition, supported by documentation from the attending physician; and

(e) If applicable, the name, address, of the proposed alternate standby guardian.

§ 2367. Grounds for Standby Guardianship

(a) Where the parent is the person suffering from a progressive chronic condition or terminal illness, prior to granting an order for standby guardianship, the Court shall find that the standby guardianship is in the child’s best interests; and:

(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

(b) Where the legal custodian or guardian is the person suffering from a progressive chronic condition or terminal illness, prior to granting an order for standby guardianship, the Court shall find that the standby guardianship is in the child’s best interests; and as to each parent:

(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.

(c) The Court must also find, prior to the granting of an order for standby guardianship that there is a significant risk that the parent, legal custodian, or guardian will die, become incapacitated, or become debilitated as a result of a chronic condition or terminal illness within two (2) years of the filing of the petition as certified by an attending physician.

(d) If an order for standby guardianship is granted, the order shall determine the triggering event for the standby guardianship by specifying whether (1) the authority of the standby guardian is effective on the receipt of a determination of the petitioner’s incapacity or debilitation, or on the receipt of the certificate of the petitioner’s death; or (2) that the authority of the standby guardian may become effective earlier on written consent of the petitioner. If at any time before the beginning of the authority of the standby guardian the Court finds that the requirements of this subchapter are no longer satisfied, the Court may rescind the order.

§ 2368. Occurrence of event triggering appointment of standby guardian; confirmation petition

(a) Upon the occurrence of a triggering event set forth in an order appointing a standby guardian, the appointed standby guardian shall be empowered to assume the standby guardian duties immediately.

(b) If the triggering event is the incapacity or debilitation of the parent, legal custodian or guardian, the attending physician shall provide a copy of his determination to the appointed standby guardian if the guardian’s identity is known to the attending physician.

(c) Within 30 days following the assumption of guardianship duties, the appointed standby guardian shall petition the Court for confirmation. The confirmation petition shall include a determination of incapacity or debilitation, or a death certificate, as appropriate. If the petition is by an alternate appointed standby guardian, the petition shall include a statement that the appointed standby guardian is unable or unwilling to act, as the basis for the statement. Absent a judicial finding or determination of unfitness, the standby guardian’s power and authority shall commence immediately upon the occurrence of the triggering event and shall continue unimpeded until such time as the Court may hear the standby guardian’s petition for confirmation.

(d) The Court shall confirm an appointed standby guardian previously named and otherwise qualified to serve as guardian unless there is a judicial determination of unfitness with regard to the appointed standby guardian.

(e) A standby guardian may decline appointment at any time before the assumption of his duties by filing a written statement to that effect with the Court, with notice to be provided to the petitioner and to the minor child if the latter is fourteen (14) years of age or older.

(f) Commencement of the duties of the standby guardian shall confer upon the appointed standby guardian shared authority with the parent, legal custodian, or guardian of the minor child unless the petition states otherwise.

(g) A parent, legal custodian, or guardian may revoke a standby guardianship by executing a written revocation, filing it with the Court where the petition was filed, and promptly notifying the appointed standby guardian of the revocation. .

(h) A person who is judicially appointed as a standby guardian under this Subchapter may at any time renounce the appointment by (1) executing a written renunciation; (2) filing the renunciation with the Court; and (3) promptly notifying in writing the parent, legal custodian, or legal guardian of the renunciation.

§ 2369. Powers and duties of the standby guardian of the child.

Except as modified by order of the Court, the standby guardian shall have the same powers and duties as enumerated in § 2340 of this Title.

§ 2370. Termination or modification

Except as modified by order of the Court, standby guardianship shall be terminated or modified as enumerated under § 2332 of this Title.

§ 2371. Appointment of standby guardian as permanent guardian.

Except as modified by order of the Court, should the standby guardian wish to be appointed as the permanent guardian of the child, permanent guardianship shall be determined under § 2350 - § 2359 of this Title.

§ 2372. Subsidies.

Except as modified by order of the Court, the Department shall have the power and authority to award subsidy money to the standby guardian as determined under § 2333 of this Title.”.

Approved May 15, 2008