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Massachusetts Standby Guardian Law

Under Massachussets law, a parent or legal custodian can nominate a standby guardian. The designation of  must be witnessed by two persons who are at least 18 years of age.  The parent may also petition the court to appoint a standby guardian.  The petition should be accompanied by an affidavit stating parent’s consent, willingness and ability to make child care decisions and future custodial wishes. 

Without court approval, a parent can appoint a short term emergency guardian.  A child who is age 14 or older may nominate his or her own guardian, subject to court approval.  However, a parent shall not appoint an emergency guardian of a minor, if the minor has another living parent who is capable of carrying out day to day child care decisions of the minor.

The standby guardian must petition the court for appointment as guardian within 90 days of the triggering event, which includes death or incapacity as certified by licensed physician, or consent.  The appointment of the emergency guardian shall be effective immediately upon the date the written instrument is executed, unless the written instrument provides for the appointment to become effective upon a later date or event.

The Massachusetts standby guardian statute is silent on the necessity to secure the agreement of the non-custodial parent.  A standby guardian exercises custody and care of the child concurrently with the parent.  It means commencement of either a standby or an emergency guardian’s authority does not itself divest the parent of any parental or guardianship rights. 

The court process starts with the filing of a petition along with the attested document designating the proposed guardian and an affidavit describing the parent’s plan for the child.  The court then holds a hearing to determine whether the guardianship is in the child’s best interests.  Notice of the hearing is sent to the parents.  The court applies a “best interests of the child” standard.

A petitioner may revoke a designation not yet appointed by the court by notifying all necessary parties in writing of the revocation . A petitioner or the guardian approved by the court may vacate the appointment by filing with the court a written revocation and by promptly notifying all necessary parties of the revocation.  Appointment of an emergency guardian may be amended or revoked by the appointing parent at any time by promptly notifying all necessary parties of the amendment or revocation.


Inside Massachusetts Standby Guardian Law