SF 2703

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to children; providing for standby guardians 
  1.3             in certain cases; proposing coding for new law in 
  1.4             Minnesota Statutes, chapter 525.  
  1.5   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.6      Section 1.  [525.6186] [STANDBY GUARDIANS.] 
  1.7      Subdivision 1.  [DEFINITIONS.] For the purposes of this 
  1.8   section: 
  1.9      (a) "Standby guardian" means: 
  1.10     (1) a person judicially appointed under subdivision 3 as 
  1.11  standby guardian of the person or property of a minor whose 
  1.12  authority becomes effective upon the incapacity or death of the 
  1.13  minor's parent or upon the consent of the parent; and 
  1.14     (2) a person designated under subdivision 4 as standby 
  1.15  guardian whose authority becomes effective upon the incapacity 
  1.16  of the minor's parent or upon the debilitation and consent of 
  1.17  the parent. 
  1.18     (b) "Attending physician" means the physician who has 
  1.19  primary responsibility for the treatment and care of the 
  1.20  petitioner.  If more than one physician shares that 
  1.21  responsibility or if a physician is acting on the attending 
  1.22  physician's behalf, any of those physicians may act as the 
  1.23  attending physician under this section.  If no physician has 
  1.24  that responsibility, any physician who is familiar with the 
  1.25  petitioner's medical condition may act as the attending 
  2.1   physician under this section. 
  2.2      (c) "Debilitation" means a chronic and substantial 
  2.3   inability, as a result of physically debilitating illness, 
  2.4   disease, or injury, to care for one's dependent child.  
  2.5   "Debilitated" means the state of having a debilitation. 
  2.6      (d)"Incapacity" means a chronic and substantial inability, 
  2.7   as a result of mental impairment, to understand the nature and 
  2.8   consequences of decisions concerning the care of one's dependent 
  2.9   child, and a consequent inability to care for that child.  
  2.10  "Incapacitated" means the state of having an incapacity. 
  2.11     Subd. 2.  [OTHER GUARDIANSHIP LAW.] The provisions of 
  2.12  sections 525.615 to 525.6199 relating to guardians apply to 
  2.13  standby guardians, except insofar as this section provides 
  2.14  otherwise. 
  2.15     Subd. 3.  [PETITION; PROCEDURE.] (a) A petition for the 
  2.16  judicial appointment of a standby guardian of the person or 
  2.17  property of a minor under this subdivision may be made only by a 
  2.18  parent or a legal guardian of the minor. 
  2.19     (b) A petition for the judicial appointment of a standby 
  2.20  guardian of a minor must state: 
  2.21     (1) whether the authority of the standby guardian is to 
  2.22  become effective upon the petitioner's incapacity, upon the 
  2.23  petitioner's death, or upon whichever occurs first; and 
  2.24     (2) that the petitioner suffers from (i) a progressively 
  2.25  chronic illness or (ii) an irreversibly fatal illness, and the 
  2.26  basis for that statement, such as the date and source of a 
  2.27  medical diagnosis, without requiring the identification of the 
  2.28  illness in question. 
  2.29     (c) The petitioner's appearance in court is not required if 
  2.30  the petitioner is medically unable to appear, except upon motion 
  2.31  and for good cause shown. 
  2.32     (d)(1) If the court finds that the petitioner suffers from 
  2.33  a progressively chronic illness or an irreversibly fatal illness 
  2.34  and that the interests of the minor will be promoted by the 
  2.35  appointment of a standby guardian of the person or property it 
  2.36  must make a decree accordingly. 
  3.1      (2) A decree under this clause must specify whether the 
  3.2   authority of the standby guardian is effective upon the receipt 
  3.3   of a determination of the petitioner's incapacity, upon the 
  3.4   receipt of the certificate of the petitioner's death, or upon 
  3.5   whichever occurs first, and must also provide that the authority 
  3.6   of the standby guardian may earlier become effective upon 
  3.7   written consent of the parent pursuant to paragraph (e), clause 
  3.8   (3).  The decree must also indicate that the authority of the 
  3.9   standby guardian is effective upon the petitioner's consent. 
  3.10     (3) If, before the authority of the standby guardian 
  3.11  begins, the court finds that the requirements of clause (1) are 
  3.12  no longer satisfied, it may rescind the decree. 
  3.13     (e)(1) If the decree provides that the authority of the 
  3.14  standby guardian is effective upon receipt of a determination of 
  3.15  the petitioner's incapacity, the standby guardian's authority 
  3.16  commences on the standby guardian's receipt of a copy of a 
  3.17  determination of incapacity made under subdivision 6.  The 
  3.18  standby guardian shall file a copy of the determination of 
  3.19  incapacity with the court that issued the decree within 90 days 
  3.20  of the date of receipt of the determination or the standby 
  3.21  guardian's authority may be rescinded by the court. 
  3.22     (2) If the decree provides that the authority of the 
  3.23  standby guardian is effective upon receipt of a certificate of 
  3.24  the petitioner's death, the standby guardian's authority 
  3.25  commences on the standby guardian's receipt of a certificate of 
  3.26  death.  The standby guardian shall file the certificate of death 
  3.27  with the court that issued the decree within 90 days of the date 
  3.28  of the petitioner's death or the standby guardian's authority 
  3.29  may be rescinded by the court. 
  3.30     (3) Notwithstanding clauses (1) and (2), a standby 
  3.31  guardian's authority commences on the standby guardian's receipt 
  3.32  of the petitioner's written consent to the commencement, signed 
  3.33  by the petitioner in the presence of two witnesses at least 18 
  3.34  years of age, other than the standby guardian, who must also 
  3.35  sign the writing.  Another person may sign the written consent 
  3.36  on the petitioner's behalf and at the petitioner's direction if 
  4.1   the petitioner is physically unable to do so, if the consent is 
  4.2   signed in the presence of the petitioner and the witnesses.  The 
  4.3   standby guardian shall file the written consent with the court 
  4.4   that issued the decree within 90 days of the date of receipt of 
  4.5   the written consent or the standby guardian's authority may be 
  4.6   rescinded by the court. 
  4.7      (f) The petitioner may revoke a standby guardianship 
  4.8   created under this subdivision by executing a written 
  4.9   revocation, filing it with the court that issued the decree, and 
  4.10  promptly notifying the standby guardian of the revocation. 
  4.11     (g) A person judicially appointed standby guardian under 
  4.12  this subdivision may, before the person's authority begins, 
  4.13  renounce the appointment by executing a written renunciation, 
  4.14  filing it with the court that issued the decree, and promptly 
  4.15  notifying the petitioner of the revocation. 
  4.16     Subd. 4.  [DESIGNATION.] (a) A parent or legal guardian may 
  4.17  designate a standby guardian by means of a written designation, 
  4.18  signed by the parent or legal guardian in the presence of two 
  4.19  witnesses at least 18 years of age, other than the standby 
  4.20  guardian, who must also sign the writing.  Another person may 
  4.21  sign the written designation on the parent's or the legal 
  4.22  guardian's behalf and at the parent's or legal guardian's 
  4.23  direction if the parent is physically unable to do so, if the 
  4.24  designation is signed in the presence of the parent or legal 
  4.25  guardian and the witnesses. 
  4.26     (b)(1) A designation of a standby guardian must identify 
  4.27  the parent or legal guardian, the minor, and the person 
  4.28  designated to be the standby guardian and indicate that the 
  4.29  parent or legal guardian intends for the standby guardian to 
  4.30  become the minor's guardian in the event the parent or legal 
  4.31  guardian either: 
  4.32     (i) becomes incapacitated; 
  4.33     (ii) becomes debilitated and consents to the commencement 
  4.34  of the standby guardian's authority; or 
  4.35     (iii) dies prior to the commencement of a judicial 
  4.36  proceeding to appoint a guardian of the person or property of an 
  5.1   infant. 
  5.2      (2) A parent or legal guardian may designate an alternate 
  5.3   standby guardian in the same writing and by the same manner as 
  5.4   the designation of a standby guardian. 
  5.5      (3) A designation may, but need not, be in the following 
  5.6   form:  
  5.7                  Designation of Standby Guardian 
  5.8      
  5.9      I (name of parent) hereby designate (name, home address, 
  5.10     and telephone number of standby guardian) as standby 
  5.11     guardian of the person and property of my child(ren) (name 
  5.12     of child(ren)). 
  5.13     (You may, if you wish, provide that the standby guardian's 
  5.14     authority shall extend only to the person, or only to the 
  5.15     property, of your child, by crossing out "person" or 
  5.16     "property," whichever is inapplicable, above.) 
  5.17     The standby guardian's authority shall take effect if and 
  5.18     when either:  (1) my doctor concludes I am mentally 
  5.19     incapacitated, and thus unable to care for my child(ren); 
  5.20     or (2) my doctor concludes that I am physically 
  5.21     debilitated, and thus unable to care for my child(ren) and 
  5.22     I consent in writing, before two witnesses, to the standby 
  5.23     guardian's authority taking effect. 
  5.24     In the event the person I designate above is unable or 
  5.25     unwilling to act as guardian for my child(ren), I hereby 
  5.26     designate (name, home address and telephone number of 
  5.27     alternate standby guardian), as standby guardian of my 
  5.28     child(ren). 
  5.29     I also understand that my standby guardian's authority will 
  5.30     cease 60 days after commencing unless by such date he or 
  5.31     she petitions the court for appointment as guardian. 
  5.32     I understand that I retain full parental rights even after 
  5.33     the commencement of the standby guardian's authority, and 
  5.34     may revoke the standby guardianship at any time. 
  5.35   Signature:  .........................................
  5.36   Address:  ...........................................
  6.1    Date:  ..............................................
  6.2      I declare that the person whose name appears above signed 
  6.3   this document in my presence, or was physically unable to sign 
  6.4   and asked another to sign this document, who did so in my 
  6.5   presence.  I further declare that I am at least 18 years old and 
  6.6   am not the person designated as standby guardian. 
  6.7    Witness' signature:  ................................
  6.8    Address:  ...........................................
  6.9    Date:  ..............................................
  6.10   Witness' signature:  ................................
  6.11   Address:  ...........................................
  6.12   Date:  ..............................................
  6.13     (c) The authority of the standby guardian under a 
  6.14  designation begins on the standby guardian's receipt of either:  
  6.15  (1) a copy of a determination of incapacity made under 
  6.16  subdivision 6; or (2) a copy of a determination of debilitation 
  6.17  made under subdivision 6 and a copy of the parent's or legal 
  6.18  guardian's written consent to the commencement, signed by the 
  6.19  parent or legal guardian in the presence of two witnesses at 
  6.20  least 18 years of age, other than the standby guardian, who must 
  6.21  also sign the writing.  Another person may sign the written 
  6.22  consent on the parent's or legal guardian's behalf and at the 
  6.23  parent's or legal guardian's direction if the parent or legal 
  6.24  guardian is physically unable to do so and if the consent is 
  6.25  signed in the presence of the parent or legal guardian and the 
  6.26  witnesses.  The standby guardian shall file a petition under 
  6.27  paragraph (d) within 60 days of the date of its commencement 
  6.28  under this paragraph or the standby guardian's authority ceases 
  6.29  after that date but recommences upon the filing. 
  6.30     (d) The standby guardian may file a petition for the 
  6.31  appointment as guardian after receipt of either:  (1) a copy of 
  6.32  a determination of incapacity made under subdivision 6; or (2) a 
  6.33  copy of a determination of debilitation made under subdivision 6 
  6.34  and a copy of the parent's or legal guardian's written consent, 
  6.35  under paragraph (c).  
  6.36     (e) A petition under paragraph (d) must: 
  7.1      (1) include the written designation of the person as 
  7.2   standby guardian; 
  7.3      (2) include a copy of either the determination of 
  7.4   incapacity of the parent or legal guardian or the determination 
  7.5   of debilitation and the parent's or guardian's consent; and 
  7.6      (3) if the petition is by a person designated as alternate 
  7.7   standby guardian, state that the person designated as standby 
  7.8   guardian is unwilling or unable to act as standby guardian and 
  7.9   the basis for that statement. 
  7.10     (f) If the court finds:  
  7.11     (1) the person was duly designated as standby guardian; 
  7.12     (2) a determination of incapacity, a determination of 
  7.13  debilitation and parent's or guardian's consent, or a document 
  7.14  indicating that the parent or legal guardian of the minor has 
  7.15  died, such as a copy of a death certificate or a funeral home 
  7.16  receipt or similar document; 
  7.17     (3) that the interests of the child will be promoted by the 
  7.18  appointment of a standby guardian of the person or property; and 
  7.19     (4) if the petition is by a person designated as alternate 
  7.20  standby guardian, the person designated as standby guardian is 
  7.21  unwilling or unable to act as standby guardian, 
  7.22  it must make a decree accordingly. 
  7.23     (g) The parent or legal guardian may revoke a standby 
  7.24  guardianship created under this subdivision: 
  7.25     (1) by notifying the standby guardian verbally or in 
  7.26  writing or by any other act evidencing a specific intent to 
  7.27  revoke the standby guardianship prior to the filing of a 
  7.28  petition; and 
  7.29     (2) where the petition has already been filed, by executing 
  7.30  a written revocation, filing it with the court where the 
  7.31  petition was filed, and promptly notifying the standby guardian 
  7.32  of the revocation. 
  7.33     Subd. 5.  [OTHER PROCEDURES.] The standby guardian may also 
  7.34  file a petition for appointment as guardian in any other manner 
  7.35  permitted by sections 525.615 to 525.6199 on notice to the 
  7.36  parent and may append a designation of standby guardian to the 
  8.1   petition for consideration by the court in the determination of 
  8.2   the petition. 
  8.3      Subd. 6.  [PHYSICIAN'S DETERMINATION.] (a) A determination 
  8.4   of incapacity or debilitation must:  (1) be made by the 
  8.5   attending physician to a reasonable degree of medical certainty; 
  8.6   (2) be in writing; and (3) contain the attending physician's 
  8.7   opinion regarding the cause and nature of the petitioner's 
  8.8   incapacity or debilitation as well as its extent and probable 
  8.9   duration.  The attending physician shall provide a copy of the 
  8.10  determination of incapacity or debilitation to the standby 
  8.11  guardian, if the standby guardian's identity is known to the 
  8.12  physician. 
  8.13     (b) If requested by the standby guardian, an attending 
  8.14  physician shall make a determination regarding the petitioner's 
  8.15  incapacity or debilitation for purposes of this section. 
  8.16     (c) The standby guardian shall ensure that the petitioner 
  8.17  is informed of the commencement of the standby guardian's 
  8.18  authority as a result of a determination of incapacity and of 
  8.19  the petitioner's right to revoke that authority promptly after 
  8.20  receipt of the determination of incapacity if there is any 
  8.21  indication of the petitioner's ability to comprehend that 
  8.22  information. 
  8.23     Subd. 7.  [CONCURRENT AUTHORITY.] The commencement of the 
  8.24  standby guardian's authority pursuant to a determination of 
  8.25  incapacity, determination of debilitation, or consent does not, 
  8.26  itself, divest the petitioner of any parental or guardianship 
  8.27  rights, but confers upon the standby guardian concurrent 
  8.28  authority with respect to the minor. 
  8.29     Subd. 8.  [FILING; DELIVERY.] (a) A county clerk, upon 
  8.30  being paid the appropriate filing fees, shall receive for filing 
  8.31  any instrument appointing or designating a standby guardian 
  8.32  under this section made by a domiciliary of the county, and 
  8.33  shall give a written receipt to the person delivering it.  The 
  8.34  filing of an appointment or designation of standby guardian is 
  8.35  for the sole purpose of safekeeping and does not affect the 
  8.36  validity of the appointment or designation. 
  9.1      (b) The appointment or designation must be delivered only 
  9.2   to:  (1) the parent or legal guardian who appointed or 
  9.3   designated the standby guardian; (2) the standby guardian or 
  9.4   alternate standby guardian; (3) the person designated as standby 
  9.5   guardian or alternate standby guardian; or (4) any other person 
  9.6   directed by the court.