COMMITTEE SUBSTITUTE
FOR
H. B. 2472
(By Delegates Staton, Coleman, Faircloth, Givens,
Mahan, Pino and Smirl)
(Originating in the House Committee on the Judiciary)
[February 5, 1999]
A BILL to amend chapter forty-four of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article ten-a, relating to
the creation of standby guardianship; defining terms; setting
forth the procedures and requirements for petitions filed with
the county commission for standby guardianship; requiring that
notice be given of any petition filed; providing that an
evidentiary hearing be held prior to approval of a standby
guardian under certain circumstances; requiring the county
commission to appoint a guardian ad litem prior to any hearing
held where the petition is filed by anyone other than the
child's parent; setting forth the factors necessary prior to
approving a standby guardianship and the form of any order of
approval; requiring service of the order; requiring the
standby guardian to file a copy of the qualified parent's death certificate, determination of incompetence or consent
when his or her authority commences; providing for the written
designation of a standby guardianship by a parent; requiring
a standby guardian authorized by a written designation to file
a petition for approval no later than thirty days after the
commencement of his authority; requiring the standby guardian
to institute proceedings to determine permanent guardianship
absent a qualified parent's objection, or, in cases where the
parent has deceased, the standby guardian may institute
adoption proceedings; establishing procedures for revocation
and refusal; and providing the standby guardian's authority
continues until it is revoked by the qualified parent or
rescinded by the county commission.
Be it enacted by the Legislature of West Virginia:
That chapter forty-four of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article ten-a, to read as
follows:
ARTICLE 1OA. STANDBY GUARDIANSHIP.
§44-10A-1. Title.
This act may be cited as the "Standby Guardianship Act."
§44-10A-2. Definitions.
(a)"Attending physician" means the physician who has primary responsibility for the treatment and care of a qualified parent.
(b)"Designation" means a writing which is voluntarily
executed in conformance with the requirements of section five of
this Act, signed by a parent and names a person to act as standby
guardian.
(c)"Determination of debilitation" means a written
determination made by an attending physician that a qualified
parent is chronically and substantially unable to care for a minor
child as a result of a debilitating illness, disease or injury.
Such a determination shall include the physician's medical opinion
to a reasonable degree of medical certainty, regarding the nature,
cause, extent and probable duration of the parent's debilitating
condition.
(d)"Determination of incompetence" means a written
determination made by the attending physician that to a reasonable
degree of medical certainty a qualified parent is chronically and
substantially unable to understand the nature and consequences of
decisions concerning the care of a minor child as a result of a
mental or organic impairment and is consequently unable to care for
the child. Such a determination shall include the physician's
medical opinion, to a reasonable degree of medical certainty,
regarding the nature, cause, extent and probably duration of the
parent's incompetence.
(e)"Parent" means a genetic or adoptive parent and includes
a person, other than a parent, who has physical custody of a child
and who has either been awarded custody by a court or claims a
rights to custody.
(f)"Qualified parent" means a parent who has been diagnosed,
as evidenced in writing, by a licensed physician to be afflicted
with a progressive or chronic condition caused by injury, disease
or illness from, to a reasonable degree of medical probability, the
patient cannot recover.
(g)"Standby guardian" means a person who, in accordance with
this article, is designated in writing or approved by the county
commission to temporarily assume the duties of guardian of the
person or property, or both, of a minor child on behalf of or in
conjunction with a qualified parent upon the occurrence of a
triggering event. The term shall be so construed as to enable the
parent to plan for the future care of a child, without terminating
parental or legal right, and to give the standby guardian the
authority to act in a manner consistent with the known wishes of a
qualified parent regarding the care, custody and support of the
minor child.
(h)"Triggering event" means the event upon the occurrence of
which the standby guardian may be authorized to act. The
triggering event shall be specified in a county commission order or written designation and shall be the earlier of a determination of
incompetence or the death of the qualified parent. However, in the
case of a standby guardian approved pursuant to section three of
this act, the triggering event may also be specified as the
qualified guardian's authority written consent to the commencement
of the standby guardian's authority.
§44-10A-3. Petition for approval of standby guardian.
(a)Upon petition of any person, the county commission of the
jurisdiction in which a child resides may approve a person as
standby guardian for a child of a qualified parent upon the
occurrence of a specific triggering event. If requested in the
petition, the county commission may also approve an alternate
standby guardian identified by the petitioner, to act in the event
that at any time after approval pursuant to this section the
standby guardian is unable or unwilling to assume the
responsibilities of the standby guardianship.
(b)The petition shall state:
(1)The name and address of the petitioner and his
relationship to the child and the name and address of the child's's
qualified parent, and the name and address of any other parent of
the child whose identity and whereabouts are known to the
petitioner or can reasonably be ascertained;
(2)The name, address and birth date of the child;
(3)The nature of the proposed triggering event, and, if
written consent is chosen as the proposed triggering event, any
factors or circumstances that must be present before the qualified
parent's written consent is effective;
(4)Whether a determination of incompetence or debilitation
has been made and, if so, when and by whom;
(5)Whether there is a significant risk that the qualified
parent will imminently become physically or mentally incapable of
caring for the child or die as the result of a progressive chronic
condition or illness; however, a petitioner shall not be required
to submit medical documentation of a parent's medical status with
the petition;
(6)The name and address of the person proposed as standby
guardian and any alternate standby guardian;
(7)Whether the petition requests that the person proposed as
standby guardian be given authority as a guardian of the person or
guardian of the property of the minor, or both;
(8)A statement of any known reasons as to why the child's
other parent is not assuming or should not assume the
responsibilities of a standby guardian;
(9)Whether there is any prior judicial history regarding
custody of the child or any pending litigation regarding custody of
the child; and
(10)The name and address of the attending physician.
(c)Upon filing of a petition, notice of the filing must be
promptly given to each parent of the child whose identity and
whereabouts are known to the petitioner, the child, if the child is
fourteen or more years of age, the proposed standby guardian and
alternate, if any, and other persons that appear to be proper and
necessary parties to the proceedings, such as any stepparent, adult
sibling, or other adult related to the child by blood, marriage or
adoption, if the identity and whereabouts of such persons are
known.
(1)The notice must be accompanied by a copy of the petition
and shall be mailed by certified mail return receipt requested, by
the petitioner.
(2)The notice should include a statement that no change in
custody or other legal rights is effected by the appointment of a
standby guardian and that it is not necessary for the recipient of
the notice to appear. The notice should also state that any
parent, stepparent, adult sibling, or other adult related to the
child by blood marriage, marriage or adoption may request a hearing
on the petition provided that such request is made within ten (10)
days from the date the notice was sent.
(d)A hearing must be held prior to any order approving the
standby guardianship if there is another known parent, stepparent, adult sibling, or other adult related to the child by blood,
marriage, or adoption who requests a hearing within ten days of the
date that notice of filing was sent or if there is other litigation
pending regarding the custody of the child.
(e)Prior to any hearing on the petition, the county
commission may appoint a discreet and competent attorney at law as
guardian ad litem to represent the child pursuant to section ten,
article four, chapter fifty-six of this code. If the petition for
standby guardianship is filed by anyone other than a parent of the
child, the county commission must appoint to guardian ad litem.
The qualified parent shall not be required to appear at the hearing
if he or she is medically unable to appear, except upon motion for
good cause shown.
§44-10A-4. County commission's order approving standby
guardianship; authority; when effective.
(a) When a petition is filed by a person other than a parent
having custody of the child, the standby guardian may be appointed
only with the consent of the qualified parent unless the county
commission finds that such consent cannot be given for medical
reasons.
(b) Upon consideration of the factors set out in subsection
(b), section three of this article and finding that the child's
parent is a qualified parent and appointment of a standby guardian is in the best interest of the child, the county commission shall
appoint a proper and suitable person as standby guardian and, if
requested, a proper and suitable person as alternate standby
guardian.
(c) The order shall specify the triggering event and shall
provide that the authority of the standby guardian is effective
upon receipt of a determination of incompetence or a certificate of
death, or the earlier of either. If the requested triggering event
is written consent, the standby guardian's authority is effective
upon receipt by the standby guardian of the qualified parent's
written consent, a determination of incapacity or debilitation, and
filing of this consent and determination with the county
commission.
(c) As soon as practicable after entry of the order, a copy
shall be served on the standby guardian.
(d) A standby guardian shall have the powers and duties of a
guardian of the person and guardian of the property of a minor,
unless otherwise specified in the order.
(e) The standby guardian shall file with the county
commission, as soon as practicable but in no event later than
thirty days following a parent's death, determination of
incompetence or consent, a copy of the certificate of death,
determination of incompetence or consent of the qualified parent upon which his authority is based and a determination of
debilitation. Failure to file within the time specified shall be
grounds for the county commission to rescind the authority of the
standby guardian or upon petition of any person, but all acts
undertaken by the standby guardian on behalf of and in the
interests of the child shall be valid and enforceable.
§44-10A-5. Written designation of a standby guardian by a parent;
commencement of authority; approval required.
(a) A parent may execute a written designation of a standby
guardian at anytime. The written designation shall be signed by
the parent witnessed by two adults whose signatures may be
authenticated by acknowledgment of a notary public. Another adult
may sign the written designation on behalf of the parent if the
parent is physically unable to do so, provided the designation is
signed at the express request of the parent and in the presence of
the parent. The designated standby guardian or alternate may not
sign on behalf of the parent. The signed designation shall be
delivered to the standby guardian and any alternate named as soon
as practicable. The written designation shall state:
(1) The name, address and birth date of the child affected;
(2) The triggering event; and
(3) The name and address of the person designated as standby
guardian or alternate.
(b) Following such delivery of the designation, the authority
of a standby guardian to act for a qualified parent shall commence
upon the occurrence of the specified triggering event and receipt
by him of a determination of incompetence, a certificate of death
of the parent, or a determination of debilitation and the qualified
parent's written consent to such commencement signed by the parent
or another on his behalf and at his direction as provided in
subsection (a) of this section for the designation.
(c) A standby guardian under a designation shall have the
authority of a guardian of the person and a guardian of the
property of the child, unless otherwise specified in the
designation.
(d) A designated standby guardian or alternate shall file a
petition for approval with the county commission as soon as
practicable after the occurrence of the triggering event but in no
event later than thirty days after the date of the commencement of
his authority. The authority of the standby guardian shall cease
upon his failure to so file, but shall recommence upon such filing.
The petition shall be accompanied by a copy of the designation and
any determinations of incapacity or debilitation or a certificate
of death.
(e) The provisions of subsection (c), section three of this
article shall apply to a petition filed pursuant to this section. The county commission shall enter an order approving the designated
guardian as standby guardian upon finding that:
(1) The person was duly designated as standby guardian
pursuant to this section and the designation has not been revoked;
(2) A determination of incompetence was made; a determination
of debilitation was made and the parent consented to commencement
of the standby guardian's authority; or the parent has died as
evidenced by a death certificate;
(3) The best interests of the child will be served by
approval of the standby guardian; and
(4) If the petition is by an alternate, that the designated
standby guardian is unwilling or unable to serve.
§44-10A-6. Further proceedings to determine permanent
guardianship.
(a) If the triggering event was death of the qualified
parent, within ninety days following the occurrence of the
triggering event or, if later, commencement of the standby
guardian's authority, the standby guardian shall petition for
appointment of a guardian for the child as otherwise provided by
law or may initiate other proceedings to determine legal and
physical custody of the child pursuant to article four chapter
forty-eight, or both.
(b) In all other cases a standby guardian shall promptly after occurrence of the triggering event initiate such proceedings
to determine guardianship and custody, absent objection by the
qualified parent.
(c) The petition shall be accompanied by:
(1) The county commission's order approving the standby
guardian or the qualified parent's written designation of the
standby guardian; and
(2) The attending physician's written determination of
incompetence or debilitation or verification of death.
§44-10A-7. Revocation, refusal and termination of standby
guardianship.
(a) The authority of a standby guardian approved by the
county commission may be revoked by the qualified parent by filing
a notice of revocation with the county commission. The notice of
revocation shall identify the standby guardian or alternate standby
guardian to which the revocation will apply. A copy of the
revocation shall also be delivered to the standby guardian whose
authority is revoked and any alternate standby guardian who may
then be authorized to act. At any time following his approval by
the county commission, a standby guardian approved may decline to
serve by filing a written statement of refusal with the county
commission and having the statement personally served on the
qualified parent and any alternate standby guardian who may then be authorized to act.
(b) When a written designation has been executed, but is not
yet effective because the triggering event has not yet occurred,
the parent may revoke or the prospective standby guardian may
refuse the designation by notifying the other party in writing. A
written designation may also be revoked by the execution of a
subsequent inconsistent designation.
(c) When a standby guardian's authority is effective upon
debilitation or incompetence of the qualified parent, the standby
guardian's authority to act on behalf of the parent continues even
though the parent is restored to health unless the qualified parent
notifies the guardian and, if appropriate the county commission, in
writing, that the standby guardian's authority is revoked upon such
restoration or otherwise. If at any time the county commission
finds that the parent no longer meets the definition of "qualified
parent," it shall rescind its approval of the standby guardian.
§44-10A-8. Review of standby guardianship.
A child's parent, stepparent, adult sibling or any adult
related to the child by blood, marriage or adoption may petition
the county commission which approved the standby guardian at any
time following such approval prior to any termination of the
standby guardianship for review of whether continuation of the
standby guardianship is in the best interests of the child. Notice of the filing of a petition shall promptly be given to the standby
guardian, the child, if the child is fourteen (14) or more years of
age, and each parent of the child whose identity and whereabouts
are known or could reasonably be ascertained.
This is a new article; therefore, underlining and strike- throughs have been omitted.