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West Virginia Standby Guardian Law

Under West Virginia law, a parent who is suffering from a progressive or chronic condition due to injury, disease, or illness and is likely to lead to debilitation of incompetence may designate a standby guardian at any time.  If the parent chooses to petition the court for approval of the standby guardianship before any triggering event occurs, s/he must establish her eligibility by asserting facts that show s/he is at imminent risk of dying or becoming physically or mentally incapable of caring for the child as a result of a progressive chronic condition or illness. 

A standby guardian by written designation must petition the court for approval as soon as possible, but no later than 30 days after the triggering event.  If the triggering event is death, the standby guardian has 90 days to file for permanent guardianship.  The other documents which pertain to the triggering event, such as physician’s written determination of incompetence or debilitation, or a death certificate and the parent’s consent must be filed within 30 days of the occurrence of the triggering event.

The standby guardian temporarily assumes the duties of guardian of the child on behalf of or in conjunction with a qualified parent.  It creates co-guardianship rights between a parent and the standby guardian.  The stand by guardian shall carry out the duties of a co-guardian in a manner consistent with the known wishes of a qualified parent regarding the care, custody and support of the minor child.

After filing of the petition, notice must be given to each parent including non custodial parent and to any children more than 14 years old.  The notice passes on the information that a standby guardianship does not alter custody or the non-custodial parent’s legal rights, and that it is not required that the parent appear at the hearing.  The court is required to hold a hearing if it is requested by a parent within 10 days of the notice being sent, or if there is pending custody litigation.  The parent including non-custodial parent, stepparent, “functional parent,” adult sibling or any adult related to the child by blood or marriage has a right to request review of the standby guardianship at any time to examine whether it is in the child’s best interests.

A parent can file a notice of revocation with court for revoking the authority of a standby guardian who has been approved by the court.  A standby guardian can refuse the designation at any time following his or her approval by the court by filing a written statement of refusal with the court and having the statement personally served on the parent.  When a written designation has been executed, but is not yet effective because the triggering event has not yet occurred, the parent may revoke or the prospective standby guardian may refuse the designation by notifying the other party in writing.  A written designation may also be revoked by the execution of a subsequent inconsistent designation. 

 


Inside West Virginia Standby Guardian Law