Section 475.046

Title XXXI TRUSTS AND ESTATES OF DECEDENTS AND PERSONS UNDER DISABILITY

Chapter 475

Effective - 28 Aug 2009   

  475.046.  Standby guardian permitted, when — appointment procedure — authority effective, when. — 1.  A custodial parent may designate a person to act as standby guardian of a minor or incapacitated person by a will that complies with the requirements of section 474.320 or by a separate written instrument which is dated and is either duly executed and acknowledged by the custodial parent or is signed by the custodial parent in the presence of at least two disinterested witnesses and subscribed by the witnesses.  If the custodial parent executes more than one document designating a standby guardian and there is a conflict between the documents as to the person designated, the document bearing the latest date shall control.

  2.  If a custodial parent who has designated a standby guardian is or becomes seriously ill, the custodial parent or the person designated as standby guardian may file a petition in the probate division of the circuit court of the county which would be of proper venue for the appointment of a guardian of the minor or incapacitated person seeking appointment of the designated person as standby guardian.  A copy of the will or separate written instrument designating the standby guardian and a consent to act as standby guardian signed by the person designated shall be filed with the petition, which petition shall state:

  (1)  The name, age, domicile, actual place of residence, and mailing address of the minor or incapacitated person;

  (2)  The name and address of the custodial parent and of the designated standby guardian;

  (3)  The name and address of each parent of the minor or incapacitated person and whether that parent is living or dead;

  (4)  The name and address of the spouse, if applicable, and the names, ages, and addresses of all living children of the minor or incapacitated person;

  (5)  If the person for whom appointment of a standby guardian is sought has been adjudicated incapacitated, the date of adjudication and the name and address of the court which entered the judgment; and

  (6)  The reasons why the appointment of a standby guardian is sought.

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Proceedings on the petition shall be conducted in the same manner as would be applicable in a case for appointment of a successor guardian under section 475.115.

  3.  The court shall determine appointment of a standby guardian in accordance with the best interests of the minor or incapacitated person after considering all relevant factors, including:

  (1)  Whether there is a parent other than the custodial parent and, if so, whether the other parent is willing, able, and fit to assume the duties of a parent;

  (2)  The suitability of a person nominated by the minor or incapacitated person if he or she is, at the time of hearing, able to communicate a reasonable choice; and

  (3)  The desirability of providing arrangements for the care, custody, and control of the minor or incapacitated person which shall minimize stress and disruption and avoid his or her placement in foster or similar care pending appointment of a guardian if the custodial parent is adjudicated incapacitated or dies.

  4.  If it appears to the court that a standby guardian should be appointed for a minor or incapacitated person, the court may appoint a standby guardian.

  5.  The authority of a person to act as standby guardian for a minor or incapacitated person shall only take effect as follows:

  (1)  If the person has previously been appointed by the court as standby guardian, upon the granting of letters of standby guardianship to the person previously appointed as provided in the order appointing the standby guardian; or

  (2)  If the person has not previously been appointed by the court as standby guardian, either because a petition for appointment has not been filed or because a petition has been filed but the proceedings are still pending, upon the first to occur of the following:

  (a)  The consent of the custodial parent in a writing duly executed and acknowledged by the custodial parent;

  (b)  Entry of an order adjudicating the custodial parent to be incapacitated; or

  (c)  The death of the custodial parent.

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The person shall, within ten days after he or she begins to act as standby guardian, notify the court in writing of that fact and of the reasons therefor.  The court may grant letters of standby guardianship to the person or, if the court deems it advisable, conduct a hearing to determine the propriety of the person having begun, and continuing, to act as standby guardian and the propriety of issuing letters of standby guardianship to the person.

  6.  A person acting as standby guardian of a minor or incapacitated person shall, within sixty days after he or she begins to act, petition the court for appointment of the standby guardian or some other qualified person as guardian of the minor or incapacitated person.  Proceedings on the petition shall be conducted in the same manner as would be applicable in a case for appointment of a successor guardian under section 475.115.

  7.  Nothing in this section shall be construed to:

  (1)  Deprive a parent of his or her legal rights with respect to a minor or incapacitated person who is a child of that parent, including court-ordered visitation with the child, nor to authorize a grant of authority to a standby guardian which would supersede any such rights; or

  (2)  Relieve a parent of his or her legal obligations or duties to a minor or incapacitated person who is a child of that parent, including a duty to support the child in accordance with a court or administrative order.

  8.  Except to the extent determined by the court to be inconsistent with the provisions of this section or as expressly provided in this section, the laws applicable to guardianship proceedings shall apply to all proceedings under this section.

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(L. 2009 H.B. 154)