Testimony Before the
of the Pennsylvania Senate Aging & Youth Committee
Wednesday, January 28, 1998
Harrisburg, Pennsylvania

Good afternoon Senator Piccola, senators. Thank you for the opportunity to speak to you today about the proposed Pennsylvania Standby Guardianship Act generally and Senate Bill 1051 in particular.

My name is Allan Gordon, and I am a partner in the Philadelphia law firm of Kolsby, Gordon, Robin, Shore & Rothweiler. In 1998 I have the privilege of serving the Philadelphia Bar Association as Chair of the Board of Governors. I am very pleased and proud to be here today representing the more than 14,000 members of the Association.

In the spring of 1997, our Association's Board of Governors had an opportunity to hear from Cathryn Miller of the AIDS Law Project of Pennsylvania regarding draft legislation that she and others had been preparing. She told us about situations she sees in her practice, situations where, in addition to coping with the physical effects of AIDS, parents torture themselves worrying about what will become of their minor children when the parent's illness becomes too sick to function as a parent. I can only speak for myself, but I'm sure many people's eyes were opened to a very difficult problem which faces single parents suffering from AIDS and debilitating illnesses. Senate Bill 1051 goes a long way toward solving that problem and for that reason it deserves your support.

Enough has been said in the 90's about family values that most of us would be happy never to hear that particular phrase again. But in thinking about my testimony for today and the issues that S.B. 1051 aims to address, I realized that here is a situation where government really can do something to support and reinforce those values which are the essence of family.

This legislation is intended to allow a parent faced with terminal illness or a chronic debilitating disease to designate someone - a trusted relative or friend - literally to stand by and be available to step in as the child's legal guardian immediately upon the parent's incapacity or death.

With luck, most of us will never have to consider what might happen to our dependent children if we become unable to care for them. I myself recently had occasion to think about how my own family and loved ones might be affected if I should become incapacitated even temporarily. Fortunately, my health problem was resolved without me having to give these issues more than a passing thought.

But consider the situation of a young single mother who has been diagnosed not with a treatable condition but with AIDS or a chronic disease like multiple sclerosis. We know that an AIDS diagnosis is tantamount to a death sentence, and that its progression can be irregular and unpredictable. Multiple sclerosis, while not a terminal disease, likewise has a quirky, unpredictable progression which can leave victims with significant temporary or permanent disability. Bottom line: periodically, this mother's health issues may simply prevent her from being available to her children.

Yet, current Pennsylvania law does not permit her to appoint a future guardian for her children except after death by will or in life by terminating her parental rights. As a result, judicial approval and ultimate resolution of the guardianship issue are delayed until some time after the parent's death leaving the children in a bureaucratic limbo. Under current Pennsylvania law, our hypothetical mother cannot - without relinquishing her own parental rights - make legally binding arrangements for the care of her children in anticipation of her health's deterioration to the point where she no longer can care for them.

Senate Bill 1051 would allow parents facing these situations to take action on behalf of their children in advance of the parents' death or incapacity while allowing them in the meantime to continue to exercise their parental responsibilities unimpaired.

If adopted, S.B. 1051 would permit a parent to make decisions affecting the long-term care and raising of children before the parent's health has deteriorated to the point where the parent can no longer care for the children. It in fact permits the family to make that decision in a positive, thoughtful way. A dying parent could then have the peace of mind that comes from knowing that the children will be cared for after the parent can no longer do so. Permitting a family faced with a parent's deadly disease or chronic debilitating illness to make such arrangements before the illness becomes all-consuming adds a measure a safety and predictability to the lives of children who already face the significant upheaval that accompanies the death or disability of a parent.

The problem S.B. 1051 addresses is not unique to Pennsylvania, nor is the proposed solution. A number of other jurisdictions have adopted standby guardianship laws, and we in Pennsylvania are fortunate to be able to learn from other states' experiences.

For example, some jurisdictions require that a physician certify that there is a significant risk that the parent will become incapacitated or die within a fixed time of the filing of the petition. S.B. 1051, instead of using an artificial time period, uses a more functional definition of disability and requires only that the physician need only state the nature, extent and probable duration of the parent's incapacity. The parent designating the standby guardian defines the triggering event which triggers the effectiveness of the designation. S.B. 1051 also allows a standby guardian to designate an additional guardian to stand-by in the event that the original standby guardian - often a grandparent or other older relative - should also become incapacitated, allowing guardians to plan for the ongoing needs of minor children.

Testifying here today are representatives of the Commonwealth's two largest bar associations as well as several other law-related or advocacy groups. Based solely on the number of lawyers testifying here today one might, quite naturally, draw the conclusion that S.B. 1051 is a bill aimed at helping lawyers, or that it somehow benefits the legal profession. Let's be very clear about this: the legislation will help lawyers only to the extent it provides lawyers with a tool to help their clients in these very, very difficult situations. It will help families, and more specifically, parents, already facing serious personal challenges, to plan for the possible contingencies of their health problems and how those contingencies might ultimately impact their minor children.

In conclusion, S.B. 1051 represents an opportunity to promote true family values: Peace of mind, security, self-determination, and independence. It offers an opportunity for us to provide families some measure of comfort during very dark times. It is a chance to create a safety net to help keep children out of government programs, permitting parents to make contingency plans with family or friends for the guardianship of minor children. It would give families a measure of control in situations where by definition control must ultimately be given over to doctors and the course of the parents' medical treatment.

We see no reason not to pass S.B. 1051, and every reason for you and your colleagues to support it. Again, thank you for giving me the opportunity to be heard today on this issue. If the Philadelphia Bar Association can help advance this legislation in any way or if there are questions we can help answer, I hope you will feel free to call on us.