The Clinical Guide to Supportive and Palliative Care for HIV/AIDS

A Clinical Guide to Supportive and Palliative Care for HIV/AIDS • Chapter 18: Legal and Financial IssuesThere are steps that parents with HIV can take in the present to insure that, if they die orbecome incapacitated, their children will be cared for by loving friends or relatives. It is stronglyadvised that parents work with an attorney with expertise in estate planning and family lawwhen formalizing26 picasa permanency plan.1. Standby Guardianship Proxy LawsIn States where it is available, the standby guardianship proxy law is an excellent planningtool for parents living with HIV. Under the standby guardianship laws, parents with HIV whohave minor children in their care can legally arrange for someone to step in and care for theirchildren during periods of incapacity, without giving up their own parental rights. To date, 16States have enacted standby guardianship proxy laws. § Parents living with HIV should checkwith an attorney in their State to see whether standby guardianship is available.Standby guardianship allows a parent or legal guardian to designate an adult to care for her minorchild during periods of incapacity without forcing the parent to give up custody or relinquish any ofher parental rights. As such, it is a particularly useful tool for parents living with HIV who may, attimes, require long hospitalizations or find themselves unable to care for their children but whoanticipate recovering enough to resume parental responsibilities. The process for appointing astandby guardian typically involves filing a petition with the appropriate court (often a family orprobate court) along with supporting documentation. In most States, the petition will require thesignature of the parent(s) or legal guardian(s) as well as the signature of the person who is beingappointed the standby guardian proxy for the child(ren). If the child is above a certain age, hisassent is required. The court may also inquire into the fitness of the proposed standby guardianproxy, by examining her criminal history or looking into any prior involvement with the State agencyoverseeing the welfare of children. If there is another legal parent, other than the custodial parentseeking to appoint the proxy, that parent must be notified. If the other parent is fit to care for thechild and objects to the appointment of the proxy, the court is unlikely to approve the standbyguardianship petition. It should also be noted that, in some States, standby guardianship is onlyavailable to parents or legal guardians who are suffering from a chronic, disabling or fatal illness.In those States, the petition for standby guardianship must present evidence of the health conditionthat may interfere with a parent’s caretaking duties.Once the standby guardian proxy is approved by a court, the proxy’s authority to act in a parentalrole begins upon the death of the parent, the consent of the parent, or the inability of the parentto care for the child as certified by a health care provider. There is no need to return to courtonce one of these triggering events occurs. Once effective, the proxy may act on the child’sbehalf for the period of time specified in the statute. Here again, laws vary considerably fromState to State. Some States allow the standby guardian proxy to act in the parental role for up to90 days (for example, Massachusetts), while others allow for a greater period of up to 6 months(for example, New Jersey). If the parent’s incapacity to care for the child extends beyond thestatutory period, or if the parent dies, the standby guardian proxy must go to court and file apetition for permanent guardianship of the child now in her care.XVIII§ States that have standby guardianship proxy laws are Arkansas, California, Colorado, Connecticut, Florida, Illinois, Maryland, Massachusetts,Minnesota, Nebraska, New Jersey, North Carolina, Pennsylvania, Virginia, West Virginia and Wisconsin. Advocates areworking to introduce and insure passage of standby guardianship legislation in many of the states where it is not yet available.U.S. Department of Health and Human Services • Health Resources and Services Administration • HIV/AIDS Bureau 383