Standby Guardianship - North Carolina

Date: June 2018

Who Can Nominate a Standby Guardian

Citation: Gen. Stat. § 35A-1370

A parent, adoptive parent, or legal guardian who suffers from a progressive chronic or irreversibly fatal illness may petition for the appointment of a standby guardian.

How to Establish a Standby Guardian

Citation: Gen. Stat. §§ 35A-1372; 35A-1373; 35A-1374

A petition for the judicial appointment of a standby guardian of a minor child shall:

  • Identify the petitioner, the minor child, and the person designated to be the standby guardian
  • State that the authority of the standby guardian is to become effective upon the petitioner's death, incapacity, or debilitation, with the consent of the petitioner, or upon the petitioner's signing of a written consent stating that the standby guardian's authority is in effect, whichever occurs first
  • State that the petitioner suffers from a progressively chronic illness or an irreversible fatal illness and the basis for such a statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question

A parent also may designate a standby guardian by means of a written designation, signed by the parent in the presence of two witnesses who are at least age 18, other than the standby guardian, who shall also sign the writing.

Evidence is required at the hearing to determine whether the requirements of the statute have been satisfied.

How Standby Authority is Activated

Citation: Gen. Stat. §§ 35A-1373; 35A-1374

The authority of the standby guardian commences upon the parent's death, mental incapacity, physical debilitation plus consent, or written consent alone. An attending physician must document the parent's incapacity or debilitation.

The standby guardian must file confirming documents with the court within 90 days of the triggering event. If the guardianship is by written designation, the standby guardian must petition the court within 90 days for appointment as guardian.

Involvement of the Noncustodial Parent

Citation: Gen. Stat. § 35A-1373

Notice to any biological or adoptive parent is required, along with a copy of the petition. The court may proceed if no complaint for custody of the child has been filed within 30 days.

Authority Relationship of the Parent and the Standby

Citation: Gen. Stat. § 35A-1377

The commencement of the standby guardian's authority due to incapacity, debilitation, or written consent shall not itself divest the parent of any parental or guardianship rights but shall confer upon the standby guardian concurrent authority with respect to the minor child.

Withdrawing Guardianship

Citation: Gen. Stat. §§ 35A-1373; 35A-1374; 35A-1376

The petitioner may revoke a judicially created guardianship by executing a written revocation, filing it with the court, and notifying the standby guardian.

The standby guardian may at any time before the commencement of the person's authority renounce the appointment by executing a written renunciation, filing it with the court, and promptly providing the petitioner with a copy of the renunciation.

The parent may revoke a written designation at any time prior to commencement by notifying the standby guardian in writing.

When the authority of the standby guardian is due to incapacity or debilitation, and the parent is subsequently restored to capacity or ability to care for the child, the authority of the standby guardian based on that incapacity or debilitation shall be suspended.

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