Standby Guardianship in Maryland

Choosing the right person is a big decision. Once you have someone in mind, you need to prepare them.

• Talk it Through: Discuss your children’s needs—school, medical care, routines, and how to pay for their expenses.
  • Fill out the Family Preparedness Plan created by ILRC to give your standby guardian a copy of: English, Spanish, Chinese.
  • Learn and share with the potential standby guardian about what kinship care via Maryland's Department of Human Services Kinship Care Fact Sheets: English, Spanish
• Share Important Documents: Give your guardian a copy of the signed Standby Guardianship form. Also give them copies of your children's birth certificates and your own information (full name, date of birth, country of origin, and Alien number if you have one). This will help them find you using the ICE Online Detainee Locator if you get detained.
  • Go over the list of documents your standby guardian should have. Here is a checklist of important documents to give copies of to the standby guardian: English/Spanish
• Talk to Your Kids: If they are old enough, explain the plan to them. Let them know who will be taking care of them and give them the guardian's contact information.

Who needs to be present at the standby guardianship appointment?

At least one parent must be present at the time of execution. The other parent or others with custodial rights can sign at a later time. The standby guardian and the optional alternate standby guardian can also sign at a later time as well.

What should the parent bring to the standby guardianship appointment?

At least one parent should bring the following:

• their government issued photo identification and/or a copy of their passport to verify their identity; and
• birth certificate for each child.

Who needs to sign the standby guardianship form?

• Mother(s)
• Father(s)
• Anyone else with custodial rights over the child
• Two witnesses that verify at least one's parent's signature at the time of signing; and
  • Note: Witnesses will generally be supplied by the organization at the signing or clinic.
• Standby guardian; and
• Alternate standby guardian.

Key Point: If more than one child is involved and each child has a different legal parent, separate standby guardianship forms must be completed and properly signed by all legal parents for each child.

The process is broken down into two parts. You start with a private plan, and only go to court if the guardianship needs to last longer than 180 days.

Phase 1: The Private Designation

1. Find a Trusted Guardian: First, talk to a family member or a close friend who you trust to care for your children. Make sure they're over 18 and willing to step in. It’s a good idea to pick a backup person, too, just in case your first choice can't do it.
2. Fill Out the Form: You, the parent, will fill out the Parental Designation and Consent to Beginning of Standby Guardianship Form. You need to sign it in front of two witnesses who are not the person you chose as the guardian. You can find the form on the Maryland Courts website. It's available in many languages hyperlinked on the right hand side of the page.
3. It Only Starts in an Emergency: The plan is dormant until a "triggering event" happens. This could be a medical emergency, but for many families, it’s an "adverse immigration action." That means being detained, getting an order to leave the country, or being denied entry into the U.S.
4. The 180-Day Rule: Once the guardianship starts, it lasts for 180 days. After that, it automatically ends.

Phase 2: The Court Appointment (Only if Needed)

If you are still unable to care for your children after 180 days, your chosen guardian needs to go to court.

1. File a Petition: Before the 180 days are up, the standby guardian must file a Petition by Standby Guardian (Judicial Appointment) with the local court where your child lives. This automatically extends the guardianship until the court makes a decision.
2. Court Hearing: The court will schedule a hearing to review the case.
   1. Something to be aware about is that the court will not appoint a guardian, under Maryland Code, Estates and Trust Sec. 11-114, that has been charged or convicted of:►A Felony or Assault;►A crime of violence, as defined in Section 14-101 of the Criminal Law Article (e.g. abduction, manslaughter, mayhem, murder, rape, robbery, carjacking, sexual offense in the 1st and 2nd degree, etc.); and/or

      ►Sexual offense or attempted rape in the 3rd or 4th degree.

4. Court Order: If the judge approves, they will issue a court order. This lets the standby guardian care for your children for as long as needed—until you revoke it or your child turns 18.

There are 3 different types of events identified as emergencies that will awaken a standby guardianship.

A trusted individual is named by the parent to care for their minor child(ren) in the event of an emergency. Estates and Trust § 13-904

1. Parent(s) and standby guardian execute document.
   1. Note: Additional standby guardian can be named in the same document if first standby guardian becomes unable to fulfill duty.
2. Triggering event occurs where parent(s) become:
   1. Physically debilitated due to an illness or injury such as COVID or a car accident; or
   2. Mentally incapacitated; or
   3. Subject to an adverse immigration action such as detention and/or deportation 
3. Standby Guardianship becomes enforceable for 180 days
   1. To extend beyond 180 days, standby guardian must file with a Maryland Circuit Court, preferably in their county of residence.

The standby guardianship form, as shown below, has 3 boxes that parent(s) can consent to giving the standby guardian the guardianship rights over the child but we generally advise that all boxes be checked in case the non-immigrant emergencies occur.

In the event evidence is needed to show that the emergency event occurred, here is a list of adverse immigration actions that can be used to show.

• Printout from Online Detainee Locator System: locator.ice.gov (must have the parent’s Alien (“A”) number)
• Bag and Baggage Letter (DHS Notice to Removable Alien to Surrender)
• Notice to Alien to Depart the US (Warning to Alien Ordered Removed or Deported)
• Immigration detainer for individuals in state custody
• Evidence that parent has departed the U.S. (i.e. evidence of parent’s location; copy of passport stamp; plane tickets)
• Order of Removal
• Order of Deportation
• Order of Exclusion
• Order granting Voluntary Departure
• Expedited Order of Removal
• Stipulated Order of Removal
• Status of Visa or Transportation letter/application
• Parole/reentry permit application & status of application
• Evidence of parent’s application for admission, along with denial

Legal Foundation

In Maryland, Standby Guardianships (SBGs) operate under the same state laws and court rules that govern all other types of guardianships. For detailed legal information, you can refer to the Maryland Rules of Procedure, Title 10, Chapter 400, which specifically covers Guardians and Other Fiduciaries.

The Initial Court Process

A court hearing is a mandatory step in establishing every Standby Guardianship. During this process, the court holds the authority to appoint an attorney or a court-appointed investigator to represent the best interests of the minor.

If the child involved is 14 years of age or older, their personal wishes regarding the guardianship will be formally requested and must be included in the petition submitted to the court.

Activation and Extension of Guardianship

Once the Standby Guardianship agreement "awakens" due to the triggering event (such as the parent's incapacitation, illness, or death), the assigned standby guardian immediately assumes the role of the child's legal guardian for a period of 180 days.

To extend the guardianship beyond this initial 180-day period, the guardian must file a formal petition for guardianship in a Maryland Circuit Court. It is highly recommended that the guardian files this petition before the 180-day period expires to ensure there is no lapse in legal authority. Seeking legal assistance for this process is also strongly advised to ensure all requirements are met correctly.

Documentation Requirements for Active Guardians

If a standby guardian has been serving in their role for more than three months, they are required to submit several key documents to the court. These include:

• The child's complete health care records
• The child's most recent school progress reports
• All court forms and documents related to the child

If your guardian has not filed a petition with the court, you can simply tell them, either verbally or in writing, that you are ending the arrangement. If they have already filed a petition, you must file a written cancellation with the court and let the guardian know.

If the guardian lives outside of Maryland, the standby guardian should be accepted in other states and courts that oversee legal guardianships. However, we generally advise that a medical power of attorney also be excuted.

Other documents to consider include:

• If the standby guardian would like extend their rights beyond the 180 days and will be filing in court and the child is currently undocumented, the standby guardian should also consider seeking a factual findings order for the child pursue Special Immigrant Juvenile status.
• Congressional Waiver of Information for the parent(s)
• ICE Waiver of Information - this document would allow ICE to release information to 3rd parties BUT is only valid for 90 days after signature.
• Family planning document - ILRC has a template to prepare families in the event the unexpected happens at Step-by-Step Family Preparedness Plan / Plan de Preparación Familiar: (Guía Completa)