Minnesota law provides that a parent having legal and physical custody or a legal custodian of a minor may nominate or designate a standby or temporary custodian. A custodian or legal guardian may file a petition with the court for standby guardianship if a triggering event has not occurred. Once a triggering event occurs, the standby guardian may file for approval of guardianship.
The written designation filed must identify the designator, the child, the other parent, if any, the standby guardian, and the triggering events that may activate the standby guardian’s authority. The instrument must include consent of the standby guardian and the other parent duly signed, or a statement why the other parent’s consent is not required. Such a designation must be signed by the designator in the presence of two witnesses who have attained the age of 18, and not otherwise named in the designation. The witnesses must also sign the declaration. Approval without a hearing is permitted if both parents consent to the designation, or there is only one surviving parent. A hearing is required in other cases.
The standby custodian’s authority commences upon a triggering event, such as a determination of incapacity or a determination of physical debilitation plus consent. If the petition is approved before the triggering event, no further court action is required. The standby custodian has 60 days from the triggering event to file confirming documents and petition for approval if a designation has been made but not yet approved by the court. If the parent dies, the standby custodian shall be appointed permanent guardian without additional petition. If the whereabouts of the parent are unknown, parental rights have been terminated, or the parent is unwilling and unable to care for the child, consent is not required.
The standby custodian’s authority does not itself divest the designator of any parental rights but confers concurrent or shared custody of the child on the standby custodian. The standby custodian has to assure frequent and continuing contact with and physical access by the parent with the child, and the involvement of the parents, to the greatest extent possible, in decision-making on behalf of the child.
Once a physician certifies that the parent’s health is restored, the standby custodian’s authority becomes inactive. The designator may revoke the appointment of a standby custodian before the petition has been filed with the court by destroying the designation and notifying the standby custodian. If the petition is already filed, then the designator must file a written revocation with the court and notify the standby custodian in writing.