Guardianship in Pennsylvania
A biological parent, a custodian of a minor child, or a court ordered legal guardian may designate a person be either a temporary or a permanent guardian of a minor child. The guardianship would give the designated person the ability to assume the duties of the natural parent or legal guardian of the child, including, but not limited to:
Enrolling the child in school;
Seeking and receiving medical attention for the child;
Seeking and receiving emergency medical attention for the child;
Seeking and receiving psychological attention for the child;
Applying for support for the child;
Taking the child on a vacation out of the state and/or the country; and/or
Applying for welfare for the child.
There are two (2) types of guardianships. The first one is a temporary guardianship, which is a written agreement between 1) the biological parents or a custodian of a minor child, or a court ordered legal guardian ("Parents") and 2) another adult named in the contract ("temporary guardian"). It is often called a power of attorney appointing temporary guardianship for a minor child. This temporary guardianship may be cancelled at any time by either party to the guardianship. This type of guardianship contract is not legally enforceable by the court. A notary should witness the signatures of the people signing the guardianship agreement. However, this only means that a notary confirms that the persons signing the document are actually the persons they claim to be. Having the document notarized does not make the document legally binding. This is not a court order, and it may not be honored by law enforcement officers, nor by the courts, in any dispute.
Temporary guardianships may be limited in purpose or time. For example, the guardianship agreement could be limited for the purpose of receiving medical attention so that someone could assist in taking your child to the physician. The guardianship agreement could be for a period of time so that the guardian could take your child on a vacation or perhaps care for your child while you are on a vacation. A guardianship agreement could also be limited in purpose and time.
Both "parents" should sign the guardianship agreement, unless the other parent’s rights are terminated, the other parent’s whereabouts are unknown, or the other parent is institutionalized. The "parents" assigning the guardianship should be certain that they trust the "guardian" with whom they are placing the child. In some cases, the "guardian" may not be willing to return the child when the "parents" decide to cancel the guardianship agreement. This would result in the "parents" having to file a custody complaint against the "guardian" to request a court order to have the child returned. Depending on the amount of time the child has been with the guardian, and the reasons the child has been with the "guardian," it could be difficult to get the child back.
There are various risks in designating a temporary guardian for your child. In addition to the above discussed difficulty in canceling the temporary guardianship if the guardian is not cooperative in returning the child, some of those other risks are as follows:
The temporary guardianship may not be honored by a school or a physician, etc.; and
The police do not usually get involved in these types of cases if there is no court order in effect;
Because of these risks, and because there are no "official" standardized forms for the language to establish temporary guardianships, if you intend to create this kind of temporary guardianship agreement it is strongly advised that you consult an attorney.
The second type of guardianship is called a "standby guardianship," which is authorized by statute, the Standby Guardianship Act, found in 23 Pa. C.S.A. §5601.
There are several differences between the above discussed "temporary guardianships" created by written agreement and designation of a "standby guardian" by following the procedures provided in the Standby Guardianship Act.
1) Unlike a "temporary guardianship" agreement which becomes effective as soon as the agreement is signed, but for the period of time and/or limited purposes stated in that written contract, a "standby guardianship," although also created in writing, becomes effective only upon the occurrence of a future triggering event specified in the written document designating the particular person(s) as the "standby guardian."
2) The authority of a "standby guardian" designated in such a writing is effective for only up to sixty (60) days after the triggering event has occurred unless the guardian petitions the court to extend the guardianship by court order.
3) Before the triggering event occurs, the parent who creates the "standby guardianship" also may petition the court to approve the guardianship by court order. Such an order then continues the authority of the standby guardian without further petition beyond sixty (60) days after the triggering event occurs.
4) In some situations, to obtain a court order as described in paragraphs 2) or 3) above, a hearing may be necessary.
5) Although the Standby Guardianship Act does contain some suggested language to create this kind of guardianship, if court approval of a "standby guardianship" is desired, an attorney should be consulted to properly word both the guardianship document as well as any petition requesting court approval of "standby guardianship" authority.
