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When to use standby guardianship

In some states, having a chronic illness with severe episodes or a fatal diagnosis puts you in danger of losing your children to the state's foster care system if you become incapacitated at any point -- no matter how temporary.

In Tennessee, however, the Standby Guardianship Law has given parents another option since 1999. Originally a response to the AIDS epidemic, the law makes it possible for parents to make legal arrangements for their children when there's no other parent waiting to step into place when the parent who is ill or dying has become incapacitated.

Under normal circumstances, transferring guardianship of your children to someone else means giving up significant parental rights either before it's really necessary (if your condition is terminal) or with the risk that you may have to struggle to get them back again (if you recover from a temporary condition).

However, not transferring guardianship care to someone else could leave your children in a state of legal uncertainty, with nobody having the authority to enroll your kids in school, arrange their medical care or decide where they should live if you have a medical crisis and are unable to care for them yourself.

A standby guardianship differs from a regular legal guardianship in that you don't give up your parental authority entirely. You can designate when the guardianship can begin and even withdraw your consent to the guardianship if it isn't working out. The guardianship can also kick in automatically in response to certain triggering events, such as if you become incapacitated during a particularly severe episode.

Standby guardianship also ends once the parent has been determined to be capable of resuming his or her parental role. Since standby guardianship never fully terminates a parent's rights, you don't need to worry about trying to regain custody and authority over your children again if your condition returns to normal or you recover enough health to care for them.

If your condition is terminal, however, the temporary guardian is able to assume full guardianship and custody after your death with no gaps in your children's care.

For more information on whether or not standby guardianship is right for your situation, an attorney's guidance can prove helpful.

Source: www.childwelfare.gov, "Standby Guardianship," accessed April 25, 2017

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