SB 253/FN (BR 1328) - G. Neal, D. Karem, D. Adams, W. Blevins, D. Boswell, T. Buford, P. Herron Jr, M. Long, E. Miller, D. Mongiardo, R. Palmer II, J. Pendleton, E. Scorsone, Jo. Turner
AN ACT relating to guardianship of minor children.
Create new sections of KRS Chapter 387 to define "alternate," "attending physician," "co-guardian," "consent," "debilitation," "designation," "designator," "determination of debilitation," "determination of debilitation," "incapacity," "standby guardian," and "triggering event"; permit a custodial parent or legal guardian to designate a standby guardian and an alternate standby guardian for a minor child or children by written designation if there is no other parent or adoptive parent whose parental rights have not been terminated or relinquished, whose whereabouts are known, and who is willing and able to make and carry out the day-to-day child-care decisions concerning the minor child or children, and permit a parent or legal guardian to designate a standby guardian with the consent of the other parent; specify the contents of the form that authorizes a designation, including the triggering event or events that would authorize the standby guardian to act; provide that the standby guardian designation shall not be construed to deprive any custodial or noncustodial parent of legal parental rights or to relieve any custodial or noncustodial parent of a duty to support a minor child; provide that a standby guardian shall have authority to act as guardian or co-guardian upon the occurrence of a triggering event, including consent, debilitation with consent, incapacity, or death, and that if death of the parent is the triggering event, the authority of the standby guardian shall be limited to physical and legal custody of the minor child or children until the will of the last surviving parent is probated; provide that, if the parent has appointed a guardian of the person or estate of a minor child or children by will under KRS 387.040 and there is a conflict between the will and a written designation of a standby guardian, the document that has the most recent execution date shall prevail; provide that the designator may file a petition for approval of a designation with the court at any time, and that upon approval, the standby guardian's authority shall commence automatically upon the occurrence of the triggering event and no further petition or confirmation shall be necessary; provide that if a designation has been made but the petition for approval of the designation has not been filed and a triggering event has occurred, the standby guardian shall have temporary legal authority to act as a co-guardian or guardian of the minor child or children without the direction of the court for a period of 60 days; require the standby guardian to file within 60 days a petition for approval of the designation in the District Court of the county in which the minor child resides and attach to the petition 1 of the following: a determination of the designator's incapacity, a determination of the designator's debilitation and the designator's signed and dated consent, or a copy of the designator's death certificate, but that if no petition is filed within 60 days, the standby guardian shall lose authority to act; provide that a designation shall constitute a rebuttable presumption in court that the designated standby guardian is capable of serving as co-guardian or guardian and that there shall be a rebuttable presumption that entry of the approval order is in the best interest of the child or children if the designator is the sole surviving parent, the parental rights of any noncustodial parent have been terminated or relinquished, or all parties consent to the designation; provide that approval of the designation without a hearing shall be permitted if the designator is the sole surviving parent, the parental rights of any noncustodial parent have been terminated or relinquished, or if all parties consent to entry of the approval order, and that, if a hearing is required, the hearing shall be conducted under KRS 387.550; provide that the standby guardian shall have authority to act as co-guardian or guardian upon the occurrence of the triggering event, and that the commencement of the standby guardian's authority to act as co-guardian pursuant to a determination of incapacity, a determination of debilitation and consent, or the receipt of consent alone shall not itself divest the designator of any parental rights, but shall confer upon the standby guardian concurrent or shared custody of the child or children; require a co-guardian to assure frequent and continuing contact with and physical access to the child or children and to assure the involvement of the parent, to the greatest extent possible, in decision-making on behalf of the child or children; provide that if a licensed physician determines that the designator has regained capacity, the co-guardian's authority which commenced pursuant to the occurrence of a triggering event shall become inactive and the co-guardian shall return to having no authority. Failure of a co-guardian to comply with this provision and to immediately return the minor child or children to the designator's care shall entitle the designator to an emergency hearing in a court of competent jurisdiction; provide for revocation prior to a petition being filed by simple destruction by the designator of the designation and notification of the revocation to the standby guardian, and after a petition has been filed, that designator may revoke a standby guardianship by executing a written revocation, filing the revocation with the court and notifying the persons named in the designation of the revocation in writing; provide that an unwritten revocation may be considered by the court if the revocation is proven by clear and convincing evidence; provide that if a parent has appointed a testamentary guardian of the person or estate of a minor child or children by will under KRS 387.040 and there is a conflict between that will and a duly executed written standby guardian designation, the document latest in date of execution shall prevail; and provide that a standby guardian shall not be required to post bond prior to the occurrence of the triggering event, although the court may require a bond if the standby guardian is designated the co-guardian or guardian of the estate of a minor child or children.
Feb 26-introduced in Senate
Feb 28-to Judiciary (S)
Mar 6-reported favorably, 1st reading, to Calendar
Mar 7-2nd reading, to Rules
Mar 13-recommitted to Judiciary (S)