What is standby guardianship in Massachusetts?
Standby guardianship is an important tool that enables parents to plan for the future care of their children. It allows a parent to designate an adult to be on standby to assume guardianship of a child only when a triggering event occurs, for example, incarceration, a terminal illness, or death, that could render the parent incapable of caring for a child, typically without losing the parent’s legal or parental rights. Once the triggering event occurs, the standby guardian takes custody of the child, makes important decisions concerning the child’s education and medical care, and provides for the child’s basic needs, such as food, clothing and shelter.
- Legal Basis: Authorized under Mass. General Laws c.190B, §§ 5-202, 5-203.
- Triggering Event: The guardianship becomes active only when a “triggering event” occurs, such as a doctor’s certification of incapacity, a parent’s death, or written consent from the parent.
- Court Process: A petition must be filed in the Probate and Family Court to confirm the standby guardian within 90 days of the triggering event.
- Child’s Role: If the child is age 14 or older, they can object to the appointment, and this objection can stop the appointment or end an existing one.
- Alternative (Temporary Agent): For short-term needs up to 60 days, parents can appoint a temporary agent using a written delegation, as permitted under MGL c.190B § 5-103.
Why is standby guardianship important for immigrant families?
Due to increased Immigration Customs Enforcement, or ICE, actions, as well as changes to federal immigration policies, such as Temporary Protected Status, or TPS, millions of children are facing the possibility of being separated from their parents. Data from the Pew Research Center indicates that in 2016 approximately 5 million U.S.-born children lived with at least one undocumented parent. Another study published in the Journal on Migration and Human Security reveals TPS holders from El Salvador, Haiti and Honduras have more than 270,000 U.S.-born children. Hence, removing parents from society with little to no warning, or without opportunity to make child care arrangements, forces them to leave their children behind and stranded. Parents can only hope that a relative or friend will step up to care for their child in their absence, in which case, the caretaker would not have legal authority to act on the child’s behalf. Without anyone assuming custody of the child, the state would have to place the child through its foster care system. Both scenarios cause significant disruption in the child’s life, and remove the parent’s ability to control who may care for their child.
Here are a few reasons why immigrant parents should file a Petition for a Standby Guardian to avoid the need for Massachusetts to take over their child’s placement and care:
- Standby guardianship promotes the best interest of the child. It enables a parent at risk for immigration detention or deportation to create an emergency child care plan that suits the child’s needs. Parents can have time to thoughtfully select someone who will assume guardian responsibilities and provide an environment that is aligned with the parents’ goals for the child. This is critical for a child’s practical needs and emotional welfare if separated from their parent.
- Standby guardianship benefits the state. When a parent appoints a standby guardian, the state avoids spending its own resources to determine placement for the child, either with a relative or through its foster care program. Locating a relative who is willing and able to assume guardianship responsibilities, as well as to go through the court process, takes time and resources.
- Advance appointment allows the standby guardian to prepare to care for the child. Although relatives or friends may be willing to care for a child whose parent has been abruptly removed from the community due to an ICE arrest or deportation, they may not be fully prepared to meet the child’s needs at a moment’s notice. Completing the standby guardianship process allows the appointed adult to make the necessary financial and practical preparations for welcoming an additional child into his or her home.
- Standby guardianship can help reduce homelessness among youth. Some youth become homeless as a result of a family member’s detention or deportation. For low-income families, losing a financially contributing member of the household, or in some instances, the only breadwinner, can cause severe financial and housing instability. This can lead to other hardships for the child, including disruption in the child’s education and increased risk for mental and physical health challenges. A standby guardian can help reduce a child’s vulnerability to such instability.
Should you be experiencing fear that you may face deportation, contact the Law Offices of Renee Lazar at 978-844-4095 to discuss legal options to ensure the safety, welfare and needs of your children
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