What legal documents are needed for the care of my handicapped niece?
Full Question:
My brother in law requires us to take care of his daughter; she will be living with us totally dependent on us for food, clothing, shelter, medical, etc. She is 16 years old and mentally handicapped. Legal guardianship is not an option. What legal documentation will we need in order to provide the care we would give this young lady as if she were our own daughter? We have brought up three children of our own all of whom have moved on to college, work and marriage. Our niece will require additional care and may not be able make the same move into society as our children have. There are so many questions we do not even know to ask but we want to provide for this young lady as if she were our own. What other responsibilities do we need to be aware of that we have not covered in this e-mail? Is there some way we can meet these with a Power of Attorney of some sort?
06/03/2009 |
Category: Guardianship |
State: Maryland |
#16854
Answer:
A standby guardian may be appointed by written designation in Maryland, without the need for formal guardianship proceedings.
Please see the following Maryland statute for applicability:
§ 13-904 EST. & TRUSTS Designation of standby guardian by
parent; requirements, contents, form of designation.
(a) Written designation; signatures. —
(1) A parent may designate a
standby guardian by means of a written designation:
(i) Signed in the presence of two witnesses, at least 18 years old,
neither of whom is the standby guardian; and
(ii) Signed by the standby guardian.
(2)
(i) If a parent is physically unable to sign a written designation,
another person may sign the designation on the parent's behalf and at the
parent's direction.
(ii)
1. A designation under this paragraph shall be signed in the
presence of the parent and two witnesses at least 18 years of age, neither
of whom may be the standby guardian.
2. The standby guardian also shall sign a designation under this
paragraph.
(b) Contents; form. —
(1) A designation of a standby guardian
shall identify the parent, the minor, and the person designated to be the
standby guardian, state the duties of the standby guardian, and indicate
that the parent intends for the standby guardian to become the minor's
guardian in the event the parent either:
(i) Becomes incapacitated; or
(ii) Becomes debilitated and consents to the beginning of the standby
guardian's authority
(2) A parent may designate an alternate standby guardian in the same
writing and by the same manner as the designation of a standby guardian
(3) A designation may, but need not, be in the following form
[omitted]
(c) Commencement of authority of standby guardian. — The
authority of the standby guardian under a designation shall begin on
(1) The standby guardian's receipt of a copy of a determination of
incapacity under § 13-906 of this subtitle; or
(2) The standby guardian's receipt of
(i) A copy of a determination of debilitation under
§ 13-906 of this subtitle:
(ii) A copy of the parent's written consent to the beginning of the
standby guardianship, signed by the parent in the presence of two
witnesses at least 18 years of age, neither of whom is the standby
guardian, and signed by the standby guardian; and
(iii) A copy of the birth certificate for each child for whom the standby
guardian is designated.
(d) Consent to beginning of standby guardianship. —
(1) If a
parent is physically unable to sign a written consent to the beginning of
the standby guardianship, another person may sign the written consent to
the beginning of the standby guardianship on the parent's behalf and at
the parent's direction.
(2) A consent under this subsection to the beginning of the standby
guardianship shall be signed in the presence of the parent and two
witnesses at least 18 years of age, neither of whom may be the standby
guardian.
(3) The standby guardian also shall sign a consent to the beginning of
the standby guardianship under this subsection.
(e) Petition for judicial appointment — Time for filing; effect
of failure to file. —
(1) A standby guardian shall file a petition
for judicial appointment within 180 days of the date of the beginning of
the standby guardianship under this section.
(2) If the standby guardian fails to file the petition within the time
specified in this subsection, the standby guardian's authority shall
terminate 180 days from the date of the beginning of the standby
guardianship.
(3) The standby guardian's authority shall begin again on the filing of
the petition.
(f) Same — Determination of incapacity; debilitation or upon
consent of parent; documentation. —
(1) A standby guardian shall
file a petition for appointment as guardian after receipt of:
(i) A copy of a determination of incapacity made under
§ 13-906 of this subtitle; or
(ii) Copies of
1. A determination of debilitation made under
§ 13-906 of this subtitle; and
2. The parent's written consent to the beginning of the standby
guardianship under this section.
(2) Subject to the provisions of paragraphs (3) and (4) of this
subsection, the petition shall be accompanied by:
(i) The written designation of the standby guardian signed, or
consented to, by each person having parental rights over the child;
(ii) A copy of:
1. The determination of incapacity of the parent; or
2. The determination of debilitation and the parental consent to the
beginning of the standby guardianship; and
(iii) If the petition is filed by a person designated as alternate
standby guardian, a statement that the person designated as standby
guardian is unwilling or unable to act as standby guardian, and the basis
for the statement.
(3) If a person who has parental rights cannot be located after
reasonable efforts have been made to locate the person, the standby
guardian may file a petition under this section without the consent of
the person to the designation of the standby guardian.
(4) If the standby guardian submits documentation, satisfactory to the
court, of the reasonable efforts to locate the person who has parental
rights, the court may appoint a standby guardian under this section.
(g) Required findings by court. — The court shall appoint a
person to be a standby guardian under this section if the court finds
that:
(1) The person was duly designated as standby guardian;
(2) A determination of incapacity, or a determination of debilitation and
parental consent to the beginning of the standby guardianship, has been made
under this section;
(3) The interests of the minor will be promoted by the appointment of a
standby guardian of the person or property of the minor; and
(4) If the petition is by a person designated as alternate standby
guardian, the person designated as standby guardian is unwilling or
unable to act as standby guardian.
(h) Revocation by parent. — A parent may revoke a standby
guardianship created under this section:
(1) Before the filing of a petition, by notifying the standby guardian
verbally or in writing or by any other act that is evidence of a specific
intent to revoke the standby guardianship; and
(2) If a petition has been filed by:
(i) Executing a written revocation;
(ii) Filing the revocation with the court in which the petition was
filed; and
(iii) Promptly notifying the standby guardian of the revocation.
(i) Renunciation of appointment. — A person who is judicially
appointed as a standby guardian under this section may at any time before
the beginning of the person's authority renounce the appointment by:
(1) Executing a written renunciation;
(2) Filing the renunciation with the court that issued the decree; and
(3) Promptly notifying in writing the parent of the revocation.
§ 13-907 EST. & TRUSTS Effect of standby guardian's authority on
parental rights; authority of standby guardian with respect to minor.
(a) Parental rights. — The beginning of a standby guardian's
authority in accordance with a determination of incapacity, determination
of debilitation, or consent may not, itself, divest a parent of any
parental or guardianship rights.
(b) Limit on authority of standby guardian. — The authority of a
standby guardian with respect to the minor is limited to the express
authority granted to the standby guardian by a court under this
subtitle.
