Suppose you have been appointed by a Clerk of Court as the general guardian or guardian of an adult who is incompetent because of dementia, intellectual disabilities, or developmental disabilities. What if you then develop progressive or debilitating health problems of your own? How can you protect your loved one if your health problems at some point make you unable to serve, or even cause your death? A section of Chapter 35A of the NC General Statutes added in 2015 allows you to name a “standby guardian” to take your place if necessary. It expands upon an existing statute allowing seriously ill parents of minor children to name a standby guardian for their children, to serve in the event of the parent’s death or disability.
The standby guardian is someone who acts as a back-up guardian, ready to assume the responsibilities of a guardian of the person or a general guardian upon a triggering event, including the current guardian’s death, mental incapacity (as determined by the Clerk), or sooner upon the current guardian’s written consent (which may be a decline in physical health). Without naming a standby guardian, if the current guardian died or became incapacitated, there would be a gap leaving no one serving as guardian until the Clerk is able to hold a hearing to appoint a new guardian. Also, in that situation, the Clerk would not have the advantage of knowing whom the original guardian thinks would do a good job next.
However, the standby guardian process is only available when the current guardian suffers from a progressive chronic or irreversible fatal illness. It is not available when the current guardian is healthy. You may be thinking that it should be available to any guardian since even a healthy guardian can be “hit by a bus” and killed – and you’d have a good point. At some point in the future, a further expansion may permit this for any guardian, but not yet.
If you are a guardian with a progressive chronic or irreversible fatal illness, you have two options to appoint a standby guardian. One is by petition. The Clerk will hold a hearing to confirm both the guardian’s progressive illness and the suitability of the person nominated as the standby guardian. Then the Clerk will enter an order appointing the standby guardian and issue letters of appointment that list the conditions upon which the power becomes effective. When the standby guardian receives documentation of the triggering event (like a death certificate for the original guardian), the standby guardian must file it with the Clerk.
The other way to name a standby guardian is by a written designation witnessed by two adults. When the standby guardian receives any of the documents listed in the statute for a triggering event, his authority begins. However, the standby guardian still must file a petition with the Clerk within 90 days of receiving documentation of the triggering event. If the Clerk finds the statutory requirements have been met, the Clerk will enter an order appointing the person and issuing guardianship letters to him/her.
While the statute does not address all problems involved in managing guardianships of adults, it does solve one. For more information on standby guardianships, contact the Clerk of Court’s office or consult an attorney.
Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough, NC. She can be reached at 919-732-7300 or firstname.lastname@example.org.
This article was last updated in January 2020.