§ 35A-1373. Appointment by petition of standby guardian; petition, notice, hearing, order. - North Carolina Statutes

§35A‑1373.  Appointment by petition of standby guardian; petition, notice,hearing, order.

(a)        A petitioner shallcommence a proceeding under this Article for the appointment of a standbyguardian of a minor child by filing a petition with the clerk of superior courtof the county in which the minor child resides or is domiciled at the time offiling. A petition filed by a guardian of the person or a general guardian ofthe minor child who was appointed under this Chapter shall be treated as amotion in the cause in the original guardianship, but the provisions of thissection shall otherwise apply.

(b)        A petition for thejudicial appointment of a standby guardian of a minor child shall:

(1)        Identify thepetitioner, the minor child, the person designated to be the standby guardian,and the person designated to be the alternate standby guardian, if any;

(2)        State that theauthority of the standby guardian is to become effective upon the death of thepetitioner, upon the incapacity of the petitioner, upon the debilitation of thepetitioner with the consent of the petitioner, or upon the petitioner's signingof a written consent stating that the standby guardian's authority is ineffect, whichever occurs first;

(3)        State that thepetitioner suffers from a progressively chronic illness or an irreversiblefatal illness, and the basis for such a statement, such as the date and sourceof a medical diagnosis, without requiring the identification of the illness inquestion;

(4)        State whether thereare any lawsuits, in this or any other jurisdiction, involving the minor childand, if so, identify the parties, the case numbers, and the states and countieswhere filed; and

(5)        Be verified by thepetitioner in front of a notary public or another person authorized to administeroaths.

(c)        A copy of thepetition and written notice of the time, date, and place set for a hearingshall be served upon any biological or adoptive parent of the minor child whois not a petitioner, and on any other person the clerk may direct, includingthe minor child. Service shall be made pursuant to Rule 4 of the Rules of CivilProcedure, unless the clerk directs otherwise. When service is made by thesheriff, the sheriff shall make such service without demanding his fees inadvance. Parties may waive their right to notice of the hearing and the clerkmay proceed to consider the petition upon determining that all necessaryparties are before the court and agree to have the petition considered.

(d)        If at or before thehearing any parent entitled to notice under subsection (c) of this sectionpresents to the clerk a written claim for custody of the minor child, the clerkshall stay further proceedings under this Article pending the filing of acomplaint for custody of the minor child under Chapter 50 of the GeneralStatutes and, upon the filing of such a complaint, shall dismiss the petition.If no such complaint is filed within 30 days after the claim is presented, theclerk shall conduct a hearing and enter an order as provided for in thissection.

(e)        The petitioner'sappearance at the hearing shall not be required if the petitioner is medicallyunable to appear, unless the clerk determines that the petitioner is able withreasonable accommodation to appear and that the interests of justice require thatthe petitioner be present at the hearing.

(f)         At the hearing,the clerk shall receive evidence necessary to determine whether therequirements of this Article for the appointment of a standby guardian havebeen satisfied. If the clerk finds that the petitioner suffers from aprogressive chronic illness or an irreversible fatal illness, that the bestinterests of the minor child will be promoted by the appointment of a standbyguardian of the person or general guardian, and that the standby guardian and thealternate standby guardian, if any, are fit to serve as guardian of the personor general guardian of the minor child, the clerk shall enter an orderappointing the standby guardian named in the petition as standby guardian ofthe person or standby general guardian of the minor child and shall issueletters of appointment to the standby guardian. The order may also appoint thealternate standby guardian named in the petition as the alternate standbyguardian of the person or alternate general guardian of the minor child in theevent that the person named as standby guardian is unwilling or unable to serveas standby guardian and shall provide that, upon a showing of thatunwillingness or inability, letters of appointment will be issued to thealternate standby guardian.

(g)        Letters ofappointment issued pursuant to this section shall state that the authority ofthe standby guardian or alternate standby guardian of the person or the standbyguardian or alternate standby general guardian is effective upon the receipt bythe guardian of a determination of the death of the petitioner, upon receipt ofa determination of the incapacity of the petitioner, upon receipt of adetermination of the debilitation of the petitioner and the petitioner'sconsent, whichever occurs first, and shall also provide that the authority ofthe standby guardian may earlier become effective upon written consent of thepetitioner pursuant to subsection (l) of this section.

(h)        If at any timeprior to the commencement of the authority of the standby guardian the clerk,upon motion of the petitioner or any person entitled to notice under subsection(c) of this section and after hearing, finds that the requirements ofsubsection (f) of this section are no longer satisfied, the clerk shall rescindthe order.

(i)         Where the orderprovides that the authority of the standby guardian is effective upon receiptof a determination of the death of the petitioner, the standby guardian'sauthority shall commence upon the standby guardian's receipt of proof of deathof the petitioner such as a copy of a death certificate or a funeral homereceipt. The standby guardian shall file the proof of death in the office ofthe clerk who entered the order within 90 days of the date of the petitioner'sdeath or the standby guardian's authority may be rescinded by the clerk.

(j)         Where the orderprovides that the authority of the standby guardian is effective upon receiptof a determination of the incapacity of the petitioner, the standby guardian'sauthority shall commence upon the standby guardian's receipt of a copy of thedetermination of incapacity made pursuant to G.S. 35A‑1375. The standbyguardian shall file a copy of the determination of incapacity in the office ofthe clerk who entered the order within 90 days of the date of the receipt ofsuch determination, or the standby guardian's authority may be rescinded by theclerk.

(k)        Where the orderprovides that the authority of the standby guardian is effective upon receiptof a determination of the debilitation of the petitioner, the standbyguardian's authority shall commence upon the standby guardian's receipt of acopy of the determination of debilitation made pursuant to G.S. 35A‑1375,as well as a written consent signed by the petitioner. The standby guardianshall file a copy of the determination of debilitation and the written consentin the office of the clerk who entered the order within 90 days of the date ofthe receipt of such determination, or the standby guardian's authority may berescinded by the clerk.

(l)         Notwithstandingsubsections (i), (j), and (k) of this section, a standby guardian's authorityshall commence upon the standby guardian's receipt of the petitioner's writtenconsent to such commencement, signed by the petitioner in the presence of twowitnesses who are at least 18 years of age, other than the standby guardian orthe alternate standby guardian, who shall also sign the writing. Another personmay sign the written consent on the petitioner's behalf and at the petitioner'sdirection if the petitioner is physically unable to do so, provided suchconsent is signed in the presence of the petitioner and the two witnesses. Thestandby guardian shall file the written consent in the office of the clerk whoentered the order within 90 days of the date of such written consent, or thestandby guardian's authority may be rescinded by the clerk.

(m)       The petitioner mayrevoke a standby guardianship created under this section by executing a writtenrevocation, filing it in the office of the clerk who entered the order, andpromptly providing the standby guardian with a copy of the revocation.

(n)        A person appointedstandby guardian pursuant to this section may at any time before thecommencement of the person's authority renounce the appointment by executing awritten renunciation and filing it with the clerk who entered the order andpromptly providing the petitioner with a copy of the renunciation. Upon thefiling of a renunciation, the clerk shall issue letters of appointment to thealternate standby guardian, if any. (1995, c. 313, s. 1.)