University Times

A new Pennsylvania law, drafted and lobbied for by students from Pitt's Family Support Legal Clinic, allows incapacitated or terminally ill parents to plan for the future custody of their children.

The Standby Guardianship Act "is extremely important because it provides security and peace of mind for parents who know that they may not survive to raise their children," said Karen Engro, a Pitt associate professor of law. She supervised the students who worked for the legislation.

At a William Pitt Union news conference on Jan. 22, the day the Standby Guardianship Law went into effect, Engro explained that the law "means that siblings are not split up and loving caretakers are able to step in — with legal authority — if the parent is too ill to care for her children, or dies. "It helps protect families from being torn apart. And it protects against children ending up as wards of the state because there is no one to step in and care for them." Pennsylvania is the 11th state to pass a standby guardianship law. In the Adoption and Safe Families Act of November 1997, Congress urged states to enact laws and procedures for terminally ill parents.

Before Pennsylvania's law was passed, terminally ill parents here had two options "and neither was very attractive," Engro said: relinquishing their rights as parents to someone else, or naming a guardian in a will.

The latter is not legally binding. "Naming a person to care for your children in a will has no legal certainty because a judge must still approve that person after determining what is in the child's best interest," Engro said. "This means that during the period between the parent's death and the approval of a guardianship designation, a period that can last as long as six months or even a year in some counties, the children have no legal guardian at all. During this period a designated guardian cannot consent to medical treatment or school-related activities." The new law, however, allows parents suffering from AIDS, cancer or some other catastrophic illness to appoint a relative or trusted caregiver as a standby guardian for their children.

However, if a parent becomes unexpectedly ill or near death and can't seek court approval, he or she may complete the legal standby guardianship papers without petitioning the court. When the parent dies or is incapacitated, the standby guardian's authority immediately takes effect. The guardian then has 60 days to petition the court to continue the guardianship.

The law is especially valuable for single parents who have no contact with the other parent, Engro said. Some of the women served by Pitt's Family Support Legal Clinic have children by several different fathers, she noted.

Absent parents must be notified of guardianship plans by first class mail sent to their last known addresses. These parents "can fight it [the plan] in court or consent to it while all of the parties are still there, still alive," Engro said.

The clinic knows of at least 50 families in the region who could be helped by the law, Engro said. But she added: "There are probably 10 more for each one of these families we know about." Marian Michaels, a pediatric infectious disease physician at Children's Hospital of Pittsburgh, said no one family's experiences prompted the legislation. "It was just that, over time, this kept coming up again and again and again with our families," she said.

At the news conference, Michaels read a statement from an HIV-infected Washington County resident whose wife and 9-year-old son have full-blown AIDS.

The man, Jim King, said passage of the Standby Guardianship Act "has lifted a great burden off our shoulders" by allowing him and his wife to choose a guardian for their son. See text on this page.

Students and faculty at the Family Support Legal Clinic had worked since 1994 on passage of the Standby Guardianship Act, which is the first such legislative victory for the clinic, Engro said.

— Bruce Steele