What happens when someone who is responsible for an incapacitated family member or a minor child becomes no longer able to do so? For a Guardian serving under court ordered authority, the appointment process for a successor can be lengthy and time consuming. The biggest concern for the incapacitated individual (“Ward”) is being able to have someone legally responsible and able to make decisions on their behalf. If the primary Guardian dies or becomes incapacitated, it could leave the minor child or Ward without care for a lengthy period of time.
That gap in care can be one of the biggest concerns for a Guardian who does not have a local network of friends or family who can easily step in and take care of a minor child or Ward if a Guardian either dies or becomes incapacitated themselves. Even if there are friends and family to help, the procedure to have another Guardian appointed can be time consuming. In North Carolina, it can take anywhere from 30-60 days to prepare a petition filing, schedule a hearing, and have the court appoint a new Guardian. Depending on the needs of the Ward, that delay in having someone responsible can be catastrophic. The interim period could see a Ward committed to a facility while waiting for someone else to get appointed. The stress of a gap in care can have highly dramatic effects on a Ward with delicate conditions such as severe autism, mental illness, or if full around the clock care is needed for the Ward. A Standby Guardian appointed can be step in and take over if something happens to the primary Guardian.
North Carolina allows for the appointment of a Standby Guardian pursuant to Section 35A of the statutes. There are two ways a Standby Guardian can be appointed. The first is for the Guardian file a petition with the Clerk of Court requesting that the Court appoint a Standby Guardian (similar to the procedure for an initial Guardianship). The second option is to allow the current Guardian to designate a successor Standby Guardian on their own.
The Standby Guardian procedure does require that the current Guardian be suffering from a progressively chronic or fatal illness. If that requirement is met, a petition can be filed and the Clerk of Court can appoint a Standby Guardian that can immediately take over without a gap in care if one of the following occurs:
- Death of the petitioner
- Upon the incapacity of the petitioner
- Upon the debilitation of the petitioner
- 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,
The second method to appoint a Standby Guardian allows the current Guardian to designate the Standby Guardian in writing if also done so in the presence of two witnesses. There is a limitation to this procedure in that the written designation is only effective for 90 days. Within that 90-day period, the Standby Guardian will be required to file a petition for Guardianship similar to any other Guardianship. With that being said, the 90-day period can provide enough coverage to stabilize the care of a Ward or minor child to allow the Standby Guardian petition the court to be appointed permanently.
