North Carolina

I. Designation of Standby Guardian
II. Agreement of the Non-Custodial Parent
III. Role of the Standby Guardian
IV. Court Process


I. Designation of Standby Guardian

North Carolina law provides two ways for a standby guardianship to be created: appointment by petition [Probate 35A-1373] or appointment through written designation [Probate 35a-1374] It therefore follows the two-track model. While both methods permit the parent to designate a proposed standby guardian, the process for appointment by petition process commences before any triggering event occurs. If the designation process is followed, a petition for appointment typically would occur after the triggering event, and it would be filed by the standby guardian. It is only through appointment by petition that the parent must state and prove that she suffers from "a progressively chronic illness or an irreversible fatal illness." [Probate 35A-1373(b)(3)]

In practical terms, from the parent's point of view, the question that defines the difference between the two processes is this: Should I resolve all questions well before any incapacity or debilitation begins while I can fully participate? Or should I keep the designation private until I absolutely need help, in which case the standby guardian can handle the court details?

Both processes require the triggering event to be any of these: incapacity, debilitation plus parental consent, consent alone, or death. Incapacity is defined as "a chronic and substantial inability, as a result of mental or organic impairment, to understand the nature and consequences of decisions concerning the care of one's minor child…." Debilitation is defined as "a chronic and substantial inability, as a result of a physically debilitating illness, disease or injury, to care for one's minor child." [Probate 35A-1370(3) and (8)] Evidence of either incapacity or debilitation is to be provided by an attending physician in the form of a written determination. [Probate 35A-1375] If the parent's consent alone is the basis for activating the guardianship, that must be in a written document, attested by two adult witnesses. [Probate 35A-1373(l); and as referenced in 35A-1374(d)(3)] Proof of death may be a death certificate, a funeral home receipt, or evidence of like quality. [Probate 35A-1373( i); 1374(d)(4).]

Once the guardianship is activated, the parent is not divested of parental guardianship rights. The parent and guardian have concurrent authority to make decisions for the child. [Probate 35A-1377]. The parent may revoke the guardianship in writing. [Probate 35A-1373(m); 1374(j)], but if the matter has already been filed, also file a copy of the revocation. Moreover, if the parent recovers from incapacity or debilitation, she can claim full guardianship of her child again by obtaining the attending physician's written explanation of her recovery, and filing it with the court. [Probate 35A-1376]




II. Agreement of the Non-Custodial Parent

The process for obtaining agreement of the non-custodial parent sufficient to satisfy the court is simple in North Carolina. His signature is not required on the designating document. Notice of the time, date and place for the hearing must be given to him. Rules of Civil Procedure (Rule 4) govern this search, requiring the usual attempts at personal, postal and published service. If a non-custodial parent files a written claim for custody, the Clerk of the Court stays proceedings for 30 days, allowing a complaint for custody to be filed under the Domestic Relations law. If no complaint is filed, the guardianship matter proceeds. [Probate 35A-1373 (c) – (d); 1374(g)-(h)]




III. Role of the Standby Guardian

Under either appointment by petition, or appointment by written designation, the standby guardian's role begins when the triggering event occurs. [Probate 35A-1373(g); 1374(d)] That triggering event may be incapacity, physical debilitation plus parental consent, consent alone, or death. The guardian has 90 days after the event to gather evidence and file it with the court. This 90 days of temporary authority applies even where the designation has not been filed already in court. [Probate 35A-1373( i) and (l); -1374(e)]. Evidence is to include a physician's statement if the triggering event is incapacity or debilitation, or a death certificate. [Probate 35A-1373(I)-(k); 35A-1374(f); 35A-1375]

The standby guardian has concurrent authority with the parent after the guardianship is activated. [Probate 35A-1377]. Depending on the court appointment, the guardian will either make decisions just for the child's person, or also as to the child's property. [Probate 35A-1378; 1202(7) and (10)] Basically, a guardian of the child's person is concerned with care, comfort, maintenance, training, education, employment and rehabilitation. It includes deciding where the child shall live, approval for all services, and reasonable care of clothing, vehicles, furniture and personal effects. [Probate 35A-1241].
A standby guardianship can last until the child is 18, unless it is terminated earlier by the court. [Probate 35A-1382]. Of course, during the parent's lifetime the appointment can be revoked in writing by the parent [Probate 35A-1373(m); -1374(j)]




IV. Court Process

An unusual aspect of North Carolina law is that judicial authority over guardianships has been delegated to the Clerk of the Court. [Probate 35A-1203] All documents and evidence are filed with the Clerk, and the hearing is held before him. That hearing may be informal. [Probate 35A-1223] Such a process might be less intimidating for an ill parent than a hearing in open court. A parent who is "medically unable" to appear, shall not have to do so. [Probate 35A-1373(e)]
There are two processes for appointing a standby guardian. In the "appointment by petition," the court process begins when the parent files a petition for a standby guardian, which can be accompanied by a document designating the guardian. A hearing is held before the Clerk of the Court. Evidence of the existence of a "progressively chronic illness or irreversibly fatal illness" is examined. Letters of Appointment may be issued. The next court contact occurs when the standby guardian files confirming evidence of the triggering event (incapacity, debilitation plus consent, consent alone, or death) within 90 days of it. Assuming the evidence to be sufficient (determination of incapacity or debilitation by an attending physician, and/or a written attested consent; or a death certificate or funeral home receipt), the guardianship is activated at that point. No further court process is required. [Probate 35A-1373]

If the chosen method is appointment by written designation, the court process does not begin until a triggering event occurs. At that point the standby guardian files the required evidence, along with the written attested designation and a petition for appointment. A hearing is then held, and Letters of Appointment may issue. No further court process need occur to validate the guardianship. [Probate 35A-1374]

		General Statutes of North Carolina Chapter 35A. Incompetency and Guardianship Subchapter IV. Standby Guardians for Minor Children Article 21. Standby Guardianship sections 35A-1202 (7) and (10); -1223; 35A- 1370; -1373; -1374; -1375; -1376, -1377; -1378; -1382