Frequently Asked Questions about Standby Guardianships in Adverse Immigration Actions
What constitutes an adverse immigration action?
The statute defines an adverse immigration action as including but not limited to (1) arrest or apprehension by a law enforcement officer for an alleged violation of federal immigration law; (2) detention or custody by the Department of Homeland Security (DHS) or a federal, state or local agency authorized or acting on behalf of DHS; (3) departure from the U.S. under an order of removal, deportation, exclusion, voluntary departure, or expedited removal or stipulation of voluntary departure; (4) denial or revocation or delay of the issuance of a visa or transportation letter by the Department of State; (5) denial, revocation or delay of the issuance of a parole document or reentry permit by DHS; or (6) denial of admission or entry into the U.S. by the DHS. This definition is not exclusive and other circumstances may qualify as an adverse immigration action.
Can an undocumented adult be designated to be the standby or alternate standby guardian?
Yes. Nothing in the law prohibits naming an undocumented adult to serve as a standby guardian. If, however, a parent names another undocumented adult as standby guardian, there is a risk that the person named could also be subject to detention or deportation. Also, if the standby guardian needs to serve for more than 6 months, he/she will have to file a petition with the court to be judicially appointed as the child’s standby guardian. This involves filing a case in court, appearing at a hearing and providing documentation of the child’s school records, health care etc. This could make an undocumented standby guardian apprehensive. In such cases where the parent decides to designate an undocumented adult, it would be wise to also designate as alternate standby guardian an adult who is documented.
Does the standby guardian have to be present to sign the Parental Designation and Consent to Beginning of Standby Guardianship form (the Form) the same time as the parent(s) sign the Form?
No. The standby guardian does not have to sign at the same time as the parent(s) but the Form is not complete without the standby guardian’s (and if relevant, the alternate standby guardian’s) signature. It is best if the standby guardian signs the Form and retains an original copy in a safe place. The standby guardian’s signature does not need to be witnessed or notarized.
If only one parent can be present to sign the Form is the other parent’s signature needed?
Yes, unless there is a reason that prevents the parent’s consent. It is best if both parents sign the Form. In such cases the parent signing the Form needs to check one of the boxes in the Consent section of the Form which lists the reason(s) that prevent the other parent’s consent (e.g., abandoned the child, cannot be located and the following efforts have been made to locate him/her, is mentally or physically unable to consent; does not have legal custody of the child; lives in another county, parentage unknown).
If a parent of the child lives outside of the United States, does that parent have to sign the Designation and Consent form?
No. The new law provides that if a parent resides outside the United States, his/her consent is not required.
Are witnesses required to witness the signatures?
A parent’s signature must be witnessed by two persons who are not the standby guardian and who are over 18 years of age. The standby guardian’s signature does not require witnesses. Also, the Form does not require notarization.
What is the difference between being a standby guardian of the person of the child versus being the standby guardian of the property of the child?
A standby guardian of the person of the child is authorized to make non-financial decisions, such as everyday needs, housing, education, food, health care, making travel arrangements and /or traveling with the child and receiving public benefits or child support on behalf of the child. A standby guardian of the property of the child is authorized to make financial decisions, such as using the child’s funds, including those received as public benefits or child support, paying bills or costs to cover the child’s personal needs, applying for public benefits and paying taxes on behalf of the child.
The Form is structured to allow the parent to specifically choose whether the parent wants to designate the standby guardian to be one or the other or both. It also allows the parent to specifically choose which powers and duties under those headings the parent wishes to authorize the standby guardian to perform. It is generally recommended that the parent authorize the standby guardian to be both the guardian of the child’s person and property since the standby guardian needs to be able to obtain public benefits and financial support for the child if feasible and will be responsible for the child’s overall welfare and well-being.
Are there any constraints on who can serve as a standby guardian?
Yes. The person has to be over 18 years of age. If the parent is choosing someone to serve as standby guardian who has any criminal convictions and needs the standby guardian to apply to the Court to extend the standby guardianship beyond the 6 month private phase, the parent should seek legal advice at the time of creating the standby guardianship.
Once the parent signs the Form, how long is it valid?
Once the parent and standby guardian sign the Form, the Form is complete. It is effective (i.e. the authority of the standby guardian becomes effective) only if the parent experiences an adverse immigration action and the standby guardian has a copy of the completed form and evidence that the parent is detained or deported. The standby guardianship lasts for 6 months from the effective date and automatically terminates unless the standby guardian files a Petition by Standby Guardian (Judicial Appointment) with the Court prior to the end of the 6 months. It a Petition is timely filed, the standby guardianship continues thereafter until the Court rules on the appointment of the standby guardian.
Is there a reason why the parent should also name an Alternate Standby Guardian?
Yes. The standby guardian is assuming a great deal of responsibility agreeing to care for the parent’s children. If at any time the standby guardian is not able or willing to continue to serve in that capacity, having already named a second person to serve as the children’s standby guardian would provide continuity of care for the children.
How does a parent revoke the standby guardianship?
If the parent wants to revoke the standby guardianship prior to any filing of a Petition by Standby Guardian (Judicial Appointment), the parent can notify the standby guardian orally or in writing that the guardianship is terminated. If the Petition has been filed, the parent must execute a written revocation and file it with the court in which the Petition was filed and also promptly notify the standby guardian of the revocation.