Standby Guardians for Immigrant Kids

Section 1. Subdivisions 3, 4 and 6 of section 1726 of the surrogate's court procedure act, as amended by chapter 632 of the laws of 2003, paragraph (c) of subdivision 3 and paragraph (e) of subdivision 4 as amended by chapter 71 of the laws of 2007, are amended to read as follows:

3. (a) A petition for the judicial appointment of a standby guardian of the person and/or property of an infant pursuant to this subdivision may be made only by a parent, a legal guardian of the infant or a legal custodian of the infant; or where the infant is not residing with a parent, legal guardian or legal custodian and, to the satisfaction of the court, such parent, legal guardian or legal custodian cannot be located with due diligence, the primary caretaker of such infant may petition for a judicial appointment of such standby guardian. Application for standing to petition as a primary caretaker shall be upon motion to the court upon notice to such parties as the court may direct.

(b) A petition for the judicial appointment of a standby guardian of an infant shall, in addition to meeting the requirements of section seventeen hundred four of this article:

(i) State whether the authority of the standby guardian is to become effective upon the petitioner's incapacity, upon the petitioner's death, upon the petitioner's consent, upon the petitioner's removal from the United States, or upon whichever occurs first;

(ii) State that the petitioner: (A) suffers from [(A)] a progressively chronic illness [or]; (B) suffers from an irreversibly fatal illness and

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD10683-02-7

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the basis for such statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question; or (C) is not a citizen of the United States.

(c) Upon a petition for the judicial appointment of a standby guardian of an infant pursuant to paragraph (a) of this subdivision or for the judicial appointment of a guardian pursuant to paragraph (d) of subdivision four of this section, the court shall conduct a hearing. The court may in its discretion dispense with a hearing for the appointment of a standby guardian, and may in its discretion appoint a guardian ad litem to recommend whether the appointment of a standby guardian as proposed in the application is in the best interest of the infant.

(d) (i) If the court finds that the petitioner suffers from a progressively chronic illness or an irreversibly fatal illness or that petitioner is not a citizen of the United States and that the interests of the infant will be promoted by the appointment of a standby guardian of the person and/or property it must make a decree accordingly.

(ii) Such decree shall specify whether the authority of the standby guardian is effective upon the receipt of a determination of the petitioner's incapacity, upon the receipt of the certificate of the petitioner's death[,] or other such evidence of death that may be satisfactory to the court, or upon petitioner's removal from the United States, or upon whichever occurs first, and shall also provide that the authority of the standby guardian may earlier become effective upon written consent of the parent pursuant to subparagraph (iii) of paragraph (e) of this subdivision.

(iii) If at any time prior to the commencement of the authority of the standby guardian the court finds that the requirements of subparagraph (i) of this paragraph are no longer satisfied, it may rescind such decree.

(e) (i) Where the decree provides that the authority of the standby guardian is effective upon receipt of a determination of the petitioner's incapacity, the standby guardian's authority shall commence upon the standby guardian's receipt of a copy of a determination of incapacity made pursuant to subdivision six of this section. The standby guardian shall file a copy of the determination of incapacity with the court that issued the decree within ninety days of the date of receipt of such determination or the standby guardian's authority may be rescinded by the court.

(ii) Where the decree provides that the authority of the standby guardian is effective upon receipt of a certificate of the petitioner's death, or other such evidence of death that may be satisfactory to the court, the standby guardian's authority shall commence upon the standby guardian's receipt of a certificate of death, or other such evidence of death as may be specified in the decree. The standby guardian shall file the certificate of death, or other such evidence of death, with the court that issued the decree within ninety days of the date of the petitioner's death or the standby guardian's authority may be rescinded by the court.

(iii) Where the decree provides that the authority of the standby guardian is effective upon receipt of a copy of a deportation order for the petitioner, or other such evidence that the petitioner has been removed from the United States that may be satisfactory to the court, the standby guardian's authority shall commence upon the standby guardian's receipt of such deportation order, or other such evidence of the petitioner's removal from the United States as may be specified in the decree. The standby guardian shall file the deportation order, or other

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such evidence, with the court that issued the decree within ninety days of the date of the petitioner's removal from the United States or the standby guardian's authority may rescinded by the court.

(iv) Notwithstanding subparagraphs (i) [and], (ii) and (iii) of this paragraph, a standby guardian's authority shall commence upon the standby guardian's receipt of the petitioner's written consent to such commencement, signed by the petitioner in the presence of two witnesses at least eighteen years of age, other than the standby guardian, who shall also sign the writing. Another person may sign the written consent on the petitioner's behalf and at the petitioner's direction if the petitioner is physically unable to do so, provided such consent is signed in the presence of the petitioner and the witnesses. The standby guardian shall file the written consent with the court that issued the decree within ninety days of the date of receipt of such written consent or the standby guardian's authority may be rescinded by the court.

(f) The petitioner may revoke a standby guardianship created under this subdivision by executing a written revocation, filing it with the court that issued the decree, and promptly notifying the standby guardian of the revocation.

(g) A person judicially appointed standby guardian pursuant to this subdivision may at any time before the commencement of his or her authority renounce the appointment by executing a written renunciation and filing it with the court that issued the decree, and promptly notifying the petitioner of the revocation.

4. (a) A parent, a legal guardian, a legal custodian, or primary caretaker under the circumstances described in paragraph (a) of subdivision three of this section may designate a standby guardian by means of a written designation, signed by the parent, legal guardian, legal custodian or primary caretaker in the presence of two witnesses at least eighteen years of age, other than the standby guardian, who shall also sign the writing. Another person may sign the written designation on the parent's, legal guardian's, legal custodian's or primary caretaker's behalf and at the parent's, legal guardian's, legal custodian's or primary caretaker's direction if the parent, legal guardian, legal custodian or primary caretaker is physically unable to do so, provided the designation is signed in the presence of the parent, legal guardian, legal custodian or primary caretaker and the witnesses.

(b) (i) A designation of a standby guardian shall identify the parent, legal guardian, legal custodian or primary caretaker, the infant and the person designated to be the standby guardian, and shall indicate that the parent, legal guardian, legal custodian or primary caretaker intends for the standby guardian to become the infant's guardian in the event the parent, legal guardian, legal custodian or primary caretaker either: (A) becomes incapacitated; (B) becomes debilitated and consents to the commencement of the standby guardian's authority; [or] (C) dies prior to the commencement of a judicial proceeding to appoint a guardian of the person and/or property of an infant; or (D) is no longer in the United States.

(ii) A parent, legal guardian, legal custodian or primary caretaker may designate an alternate standby guardian in the same writing, and by the same manner, as the designation of a standby guardian.

(iii) A designation may, but need not, be in the following form:

Designation of Standby Guardian

(NOTE: As used in this form, the term "parent" shall include a

parent, a court-appointed guardian of an infant's person or proper-

ty, a legal custodian, or a primary caretaker, and the term

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"child(ren)" shall include the dependant infant of a parent, court-

appointed guardian, legal custodian or primary caretaker

I (name of parent) hereby designate (name, home address and

telephone number of standby guardian) as standby guardian of

the person and property of my child(ren) (name of child(ren)).

(You may, if you wish, provide that the standby guardian's

authority shall extend only to the person, or only to the

property, of your child, by crossing out "person" or "proper-

ty", whichever is inapplicable, above.)

The standby guardian's authority shall take effect: (1) if

my doctor concludes in writing that I am mentally incapaci-

tated, and thus unable to care for my child(ren); (2) if my

doctor concludes in writing that I am physically debilitated,

and thus unable to care for my child(ren) and I consent in

writing, before two witnesses, to the standby guardian's

authority taking effect; [or (iii)] (3) upon my death; or (4)

upon my removal from the United States by order of

deportation.

In the event the person I designate above is unable or

unwilling to act as guardian for my child(ren), I hereby

designate (name, home address and telephone number of alter-

nate standby guardian), as standby guardian of my child(ren).

I also understand that my standby guardian's authority will

cease sixty days after commencing unless by such date he or

she petitions the court for appointment as guardian.

I understand that I retain full parental, guardianship,

custodial or caretaker rights even after the commencement of

the standby guardian's authority, and may revoke the standby

guardianship at any time.

Signature: ________________________________________________

Address: __________________________________________________

Date: _____________________________________________________

I declare that the person whose name appears above signed

this document in my presence, or was physically unable to sign

and asked another to sign this document, who did so in my

presence. I further declare that I am at least eighteen years

old and am not the person designated as standby guardian.

Witness' Signature: _______________________________________

Address: __________________________________________________

Date: _____________________________________________________

Witness' Signature: _______________________________________

Address: __________________________________________________

Date: _____________________________________________________

(iv) Notwithstanding [paragraphs] this paragraph or paragraph (a) [and (b)] of this subdivision, a designation of standby guardian shall be effective as if made in accordance with the requirements of this subdivision if it was validly made: (a) where the parent, legal guardian, legal custodian or primary caretaker was domiciled at the time it was executed; (b) in the jurisdiction where it was executed or (c) where the parent, legal guardian, legal custodian or primary caretaker is domiciled at the time the designation becomes effective.

(c) The authority of the standby guardian under a designation shall commence upon either: (i) the standby guardian's receipt of a copy of a determination of incapacity made pursuant to subdivision six of this section; (ii) the standby guardian's receipt of (A) a copy of a determination of debilitation made pursuant to subdivision six of this section

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