SD20 - Study of Standby Guardianship


Executive Summary:
The death of a parent is a traumatic event for a child. This trauma is exacerbated if the death is accompanied by uncertainty over the future care and custody. A parent's chronic illness often robs the child of a sense of security and protection. For diseases such as AIDS, the stigma and attendant denial attached to the disease often serve as a barrier to the parent's confronting their imminent death and forestall their making arrangements for their children's future care and custody.

Currently in Virginia, parents have three options for planning for the future care and custody of their child. Two of these options--adoption and the appointment a guardian--require the termination of parental rights. The third option--nomination of a caretaker in a will--does not guarantee that the parent's preference will be honored. In addition, a will routinely takes months to resolve, leaving the child in limbo.

Standby guardianship is a legal remedy for those parents who want to plan for the future care of their children while they are still alive, are able to know that their preferences will be honored, and are able to maintain their parental rights for as long as they are able to care for their child. The advantage of standby guardianship is that it allows the parent with a progressive and/or chronic illness to insure that their wishes will be honored and the child will not be placed in foster care or be without a permanent guardian at the time of their death. Their designating a standby guardian does not affect their parental rights while they are still able to care for their child. National studies indicate that when a parent has attended to the future care of their children, they are able to devote more energy to participating in their medical regime and to maintain their capacity for as long as possible.

Medical advances over the last few years have resulted in fewer HIV-infected adults dying from AIDS. In Virginia the rate of HIV infection in women of child-bearing ages is slowly decreasing; however, over the next decade there will undoubtedly be children orphaned in Virginia as a result of AIDS. Service providers working with HIV-infected parents and their children often offer legal clinics as part of their services. If enacted into Virginia law, knowledge of the standby guardianship provisions would benefit attorneys providing services in pro bono legal aid clinics for AIDS patients and service professionals who work with parents having terminal illnesses.

As a result of conducting the study on the need for standby guardianship, the Commission on Youth offers the following two recommendations:

Recommendation 1

Amend Title 16.1 of the Code of Virginia by adding a new section to allow for the appointment of a standby guardian responsible for the care and custody of minor children. The provision of standby guardianship should be available for the custodial parent who has been diagnosed with a progressive and/or chronic illness. Through the identification of a standby guardian, the parent does not revoke their parental rights and responsibilities.

Recommendation 2

The Department of Health, in collaboration with the Commission on Youth, will develop a dissemination plan to AIDS service providers across the state who are working with patients to whom standby guardianship might apply. The Department of Health shall also provide the Commission with a list of other providers working with terminally ill parents who would benefit from knowledge of standby guardianship provisions.