Standby Guardianship

Poyner Spruill LLP

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 for a court to grant a Guardian authority pursuant to a hearing.  Depending on the needs of the Ward, that delay in having someone responsible can be catastrophic.  The interim period could see Wards committed to facilities while waiting for someone else to get appointed.  The stress of a gap in care can have highly dramatic effects on Wards who need around-the-clock care or who have delicate conditions, such as severe autism or mental illness.  Depending on the needs of the Ward, the Guardian appointed can step in and take over if something happens.

An important option to deal with this situation is documented in Article 21 of Section 35A which allows for the appointment of a Standby Guardian.  There are two ways a Standby Guardian can be appointed.  The first is for the Guardian to 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 is 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:

  1. Death of the Petitioner,
  2. Incapacity of the Petitioner,
  3. Debilitation of the Petitioner,
  4. Written consent of the Petitioner, or
  5. 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 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 and leave enough time for the petition.


Andy Blair

Andy Blair

Originally Published At The JD Supra Platform