GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

S	1 

SENATE BILL 682*

Short Title:  Standby Guardianship Act.	(Public)

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Sponsors: Senators Gulley, Allran, and Lucas.

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Referred to:  Judiciary II/Election Laws

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April 13, 1995

A BILL TO BE ENTITLED
AN ACT TO PROVIDE FOR THE APPOINTMENT OF STANDBY GUARDIANS.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 35A of the General Statutes is amended by adding a new Article to read:
"ARTICLE 21.
"Standby Guardianship.
"§ 35A-1370.  Definitions.
For purposes of this Article:
(1)	'Alternate standby guardian' means a person identified in either a petition or designation who shall assume the duties of guardian over the person and, when applicable, the property of a minor child, pursuant to G.S. 35A-1372 or to G.S. 35A-1373, when the person identified as the standby guardian and the designator or petitioner has identified an alternate standby guardian.
(2)	'Attending physician' means the physician who has primary responsibility for the treatment and care of the parent or legal guardian.  When more than one physician shares this responsibility, or when a physician is acting on the primary physician's behalf, any such physician may act as the attending physician pursuant to this section.  When no physician has this responsibility, a physician who is familiar with the petitioner's medical condition may act as the attending physician pursuant to this Article.
(3)	'Consent' means written consent signed by the parent or legal guardian in the presence of two witnesses, over the age of 18, neither of whom is the standby guardian or alternate standby guardian who shall also sign the document.  The written consent shall constitute the terms for the commencement of the duties of the standby guardian.
(4)	'Debilitation' means a chronic and substantial inability, as a result of a physically debilitating illness, disease, or injury, to care for one's minor child.
(5)	'Designation' means a written document voluntarily executed by the designator pursuant to this Article.
(6)	'Designator' means a competent parent who has legal custody of a child or a minor child's legal guardian, who suffers from a progressively fatal illness, or the guardian ad litem of a parent or legal guardian of a minor child who makes a designation pursuant to this Article.
(7)	'Determination of debilitation' means a written determination made by the attending physician which contains the physician's opinion to a reasonable degree of medical certainty regarding the nature, cause, extent, and probable duration of the parent's or legal guardian's debilitation.
(8)	'Determination of incapacity' means a written determination made by the attending physician which contains the physician's opinion to a reasonable degree of medical certainty regarding the nature, cause, extent, and probable duration of the incapacity of the parent or legal guardian.
(9)	'Incapacity' means 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, and a consequent inability to make these decisions.
(10)	'Minor child' means a child or children under the age of 18 years, but excludes a child or children residing in a placement funded or approved by the department of social services pursuant to either a voluntary agreement or court order.
(11)	'Petitioner' means a minor child's biological or adoptive parent or legal guardian who suffers from a progressively chronic illness or an irreversibly fatal illness, or the guardian ad litem of that parent or legal guardian appointed pursuant to G.S. 1A-1, Rule 17, or pursuant to Article 1 of this Chapter, who is eligible under this Article to file a petition for the appointment of a standby guardian.
(12)	'Standby guardian' means a person appointed pursuant to G.S. 35A-1372 or designated pursuant to G.S. 35A-1373 to assume the duties of guardian over the person and, when applicable, the property of a minor child upon the death of the parent or legal guardian, upon a determination of debilitation or incapacity of the parent or legal guardian, or with the consent of the parent or legal guardian.
(13)	'Triggering event' means an event stated in the designation, petition, or decree which empowers the standby guardian, or the alternate standby guardian, if one is identified and the standby guardian is unwilling or unable to serve, to assume the duties of the office, which event may be the death of the parent or legal guardian, incapacity of the parent or legal guardian, debilitation of the parent or legal guardian with the petitioner's consent, or the consent of the parent or legal guardian, whichever occurs first.
"§ 35A-1371.  Standby guardianship; applicability.
This Article provides two methods for appointing a standby guardian: by petition pursuant to G.S. 35A-1372 or by designation pursuant to G.S. 35A-1373.  If a standby guardian is unwilling or unable to serve as a standby guardian and the designator or petitioner has identified an alternate standby guardian, then the alternate standby guardian shall become the standby guardian, upon the same conditions as set forth in this Article. The provisions of this Chapter relating to guardians shall apply to standby guardians, except insofar as this Article provides otherwise.
"§ 35A-1372.  Appointment by petition.
(a)	A petition for the judicial appointment of a standby guardian of the person or property of a minor child pursuant to this section may be made by the biological or adoptive parent or the legal guardian of the minor child.  If a parent or legal guardian of a minor child has a guardian ad litem, appointed pursuant to the provisions of G.S. 1A-1, Rule 17 or pursuant to Article 1 of this Chapter, that guardian ad litem shall also have the authority to petition for the judicial appointment of a standby guardian for the minor child of the guardian ad litem's ward.
(b)	A petition for the judicial appointment of a standby guardian of a minor child shall:
(1)	Identify the parent or legal guardian, 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 the authority of the standby guardian is to become effective upon the death of the parent or legal guardian, upon the incapacity of the parent or legal guardian, upon the debilitation of the parent or legal guardian 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, whichever occurs first;
(3)	State that the parent or legal guardian suffers from a progressively chronic illness or an irreversibly fatal illness, and the basis for such a statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question;
(4)	State whether there are any lawsuits, in this or any other jurisdiction, involving the minor child and, if so, identify the parties, the case numbers, and the states and counties where filed; and
(5)	Be verified by the petitioner in front of a notary public or another person authorized to administer oaths.
(c)	The petitioner shall provide any other parent or legal guardian of the minor child with reasonable notice and an opportunity to be heard.
(d)	The petitioner's appearance in court shall not be required if the petitioner is medically unable to appear, except upon motion and for good cause shown.
(e)	If the court finds that the parent or legal guardian suffers from a progressively chronic illness or an irreversibly fatal illness and that the best interests of the minor child will be promoted by the appointment of a standby guardian of the person or the property, it shall issue a decree appointing the standby guardian, or if the person identified as the standby guardian is unwilling or unable to serve as standby guardian, then appointing the person identified as the alternate standby guardian as standby guardian.
(f)	A decree issued pursuant to this section shall state that the authority of the standby guardian is effective upon the receipt of a determination of the death of the parent or legal guardian, upon receipt of a determination of the incapacity of the parent or legal guardian, upon receipt of a determination of the debilitation of the parent or legal guardian with the petitioner's consent, whichever occurs first, and shall also provide that the authority of the standby guardian may earlier become effective upon written consent of the petitioner pursuant to subsection (l) of this section.
(g)	The decree shall also include a finding that the standby guardian and the alternate standby guardian are fit to serve as standby guardian.
(h)	If at any time prior to the commencement of the authority of the standby guardian the court finds that the requirements of subsection (e) of this section are no longer satisfied, it may rescind the decree.
(i)	Where the decree provides that the authority of the standby guardian is effective upon receipt of a determination of the death of the parent or legal guardian, the standby guardian's authority shall commence upon the standby guardian's receipt of proof of death of the parent or legal guardian such as a copy of a death certificate or a funeral home receipt.  The standby guardian shall file the proof of death with the court that issued the decree within 90 days of the date of the petitioner's death or the standby guardian's authority may be rescinded by the court.
(j)	Where the decree provides that the authority of the standby guardian is effective upon receipt of a determination of the incapacity of the parent or legal guardian, the standby guardian's authority shall commence upon the standby guardian's receipt of a copy of the determination of incapacity made pursuant to G.S. 35A-1374.  The standby guardian shall file a copy of the determination of incapacity with the court that issued the decree within 90 days of the date of the receipt of such determination, or the standby guardian's authority may be rescinded by the court.
(k)	Where the decree provides that the authority of the standby guardian is effective upon receipt of a determination of the debilitation of the parent or legal guardian, the standby guardian's authority shall commence upon the standby guardian's receipt of a copy of the determination of debilitation made pursuant to G.S. 35A-1374, as well as a written consent signed by the petitioner.  The standby guardian shall file a copy of the determination of debilitation and the written consent with the court that issued the decree within 90 days of the date of the receipt of such determination, or the standby guardian's authority may be rescinded by the court.
(l)	Notwithstanding subsections (i), (j), and (k) of this section, a standby guardian's authority shall commence  upon the standby guardian's receipt of the petitioner's written consent to such commencement, signed by the petitioner in the presence of two witnesses who are at least 18 years of age, other than the standby guardian or the alternate standby guardian, who shall also sign the writing.  Another person may sign the written consent on the petitioner's behalf and at the petitioner's direction if the petitioner is physically unable to do so, provided such consent is signed in the presence of the petitioner and the two witnesses.  The standby guardian shall file the written consent with the court that issued the decree within 90 days of the date of such written consent, or the standby guardian's authority may be rescinded by the court.
(m)	The petitioner may revoke a standby guardianship created under this section by executing a written revocation, filing it with the court that issued the decree, and promptly providing the standby guardian with a copy of the revocation.
(n)	A person appointed standby guardian pursuant to this section may at any time before the commencement of the person's authority renounce the appointment by executing a written renunciation and filing it with the court that issued the decree and promptly providing the petitioner with a copy of the renunciation, and then the alternate standby guardian shall become standby guardian upon the same conditions as set forth in this Article.
"§ 35A-1373.  Appointment by written designation; form.
(a)	A parent or legal guardian of a minor child or the guardian ad litem of a parent or legal guardian may designate a standby guardian by means of a written designation, signed by the parent or legal guardian of the minor child or the guardian ad litem of the parent or the legal guardian in the presence of two witnesses at least 18 years of age, other than the standby guardian or alternate standby guardian, who shall also sign the writing.  Another person may sign the written designation on the behalf of the parent or legal guardian and at the direction of the parent or legal guardian if the parent or legal guardian is physically unable to do so, provided that the designation is signed in the presence of the parent or legal guardian and the two witnesses.
(b)	A designation of a standby guardian shall identify the parent or legal guardian, the minor child, the person designated to be the standby guardian, and the person designated to be the alternate standby guardian, if any, and shall indicate that the designator intends for the standby guardian to become the minor child's guardian in the event that the parent or legal guardian either:
(1)	Becomes incapacitated;
(2)	Becomes debilitated and consents to the commencement of the standby guardian's authority;
(3)	Dies prior to the commencement of a judicial proceeding to appoint a guardian of the person or property of a minor child; or
(4)	Consents to the commencement of the standby guardian's authority.
(c)	The authority of the standby guardian under a designation shall commence upon the same conditions as set forth for the effectiveness of a judicial decree in G.S. 35A-1372(i) through (l).
(d)	The standby guardian shall file a petition for appointment as guardian after receipt of either:
(1)	A copy of a determination of incapacity made pursuant to G.S. 35A-1374;
(2)	A copy of a determination of debilitation made pursuant to G.S. 35A-1374 and a copy of the designator's written consent to such commencement;
(3)	A copy of the designator's written consent to such commencement, made pursuant to G.S. 35A-1372(l); or
(4)	Proof of death of the parent or legal guardian, such as a copy of a death certificate or a funeral home receipt.
(e)	The standby guardian shall file a petition pursuant to subsection (d) of this section within 90 days of the date of the commencement of the standby guardian's authority under this section, or the standby guardian's authority shall lapse after the expiration of those 90 days, to recommence only upon filing of the petition.
(f)	A petition filed pursuant to subsection (d) of this section shall:
(1)	Append the written designation of such person as standby guardian; and
(2)	Append a copy of either (i) the determination of incapacity of the parent or legal guardian; (ii) the determination of debilitation of the parent or legal guardian and the written consent of the designator; (iii) the designator's consent; or (iv) proof of death of the parent or legal guardian, such as a copy of a death certificate or a funeral home receipt; and
(3)	If the petition is by a person designated as an alternate standby guardian, state that the person designated as the standby guardian is unwilling or unable to act as standby guardian, and the basis for that statement; and
(4)	State whether there are any lawsuits, in this State or any other jurisdiction, involving the minor child and, if so, identify the parties, the case numbers, and the states and counties where filed; and
(5)	Be verified by the petitioner in front of a notary public or another person authorized to administer oaths.
(g)	The petitioner shall provide any other parent or legal guardian of the minor child with reasonable notice and an opportunity to be heard.
(h)	The court shall issue a decree appointing the petitioner as standby guardian if the court finds that:
(1)	The person was duly designated as a standby guardian or alternate standby guardian;
(2)	That (i) there has been a determination of incapacity; (ii) there has been a determination of debilitation and the designator has consented to the commencement of the standby guardian's authority; (iii)  the designator has consented to that commencement; or (iv) the parent or legal guardian of the minor child has died, such information coming from a document, such as a copy of a death certificate or a funeral home receipt;
(3)	That the best interests of the minor child will be promoted by the appointment of a standby guardian of the person or property; and
(4)	That, if the petition is by a person designated as an alternate standby guardian, the person designated as standby guardian is unwilling or unable to serve as standby guardian.
(i)	The designator may revoke a standby guardianship created under this section by:
(1)	Notifying the standby guardian in writing of the intent to revoke the standby guardianship prior to the filing of the petition; or
(2)	Where the petition has already been filed, by executing a written revocation, filing it with the court where the petition was filed, and promptly providing the standby guardian with a copy of the written revocation.
"§ 35A-1374.  Determination of incapacity or debilitation.
(a)	A determination of incapacity or debilitation shall:
(1)	Be made by the attending physician to a reasonable degree of medical certainty;
(2)	Be in writing; and
(3)	Contain the attending physician's opinion regarding the cause and nature of the incapacity or debilitation of the parent or legal guardian, as well as its extent and probable duration.
(b)	The attending physician shall provide a copy of the determination of incapacity or debilitation to the standby guardian, if the standby guardian's identity is known to the physician.
(c)	If requested by the petitioner, designator, or standby guardian, an attending physician shall make a determination regarding the incapacity or debilitation of the parent or legal guardian for purposes of this Article.
(d)	The standby guardian shall ensure that the petitioner or designator is informed of the commencement of the standby guardian's authority as a result of a determination of incapacity or debilitation and of the possibility of a future suspension of the standby guardian's authority pursuant to G.S. 35A-1375.
"§ 35A-1375.  Restoration of capacity or ability; suspension of guardianship.
In the event that the authority of the standby guardian becomes effective upon the receipt of a determination of incapacity or debilitation of the parent or legal guardian of a minor child and the parent or legal guardian is subsequently restored to capacity or ability to care for the child, the authority of the standby guardian based on that incapacity or debilitation shall be suspended.  The attending physician shall provide a copy of the determination of restored capacity or ability to the standby guardian, if the identity of the standby guardian is known to the attending physician, and the standby guardian shall, and the parent or legal guardian may, file a copy of the determination of restored capacity or ability with the court that issued the decree.  A determination of restored capacity or ability shall:
(1)	Be made by the attending physician to a reasonable degree of medical certainty;
(2)	Be in writing; and
(3)	Contain the attending physician's opinion regarding the cause and nature of the parent's or legal guardian's restoration to capacity or ability.
The decree issued by the court shall remain in full force and effect, and the authority of the standby guardian shall recommence upon the standby guardian's receipt of a subsequent determination of the parent's or legal guardian's incapacity, pursuant to G.S. 35A-1372(j), or upon the standby guardian's receipt of a subsequent determination of debilitation pursuant to G.S. 35A-1372(k), or upon the receipt of proof of death of the parent or legal guardian, or upon the written consent of the parent or legal guardian, pursuant to G.S. 35A-1372(l).
"§ 35A-1376.  Authority concurrent to parental rights.
The commencement of the standby guardian's authority pursuant to a determination of incapacity, determination of debilitation, or written consent shall not itself divest the parent or legal guardian of any parental or guardianship rights, but shall confer upon the standby guardian concurrent authority with respect to the minor child.
"§ 35A-1377.  Filing of appointment or designation of standby guardian.
(a)	The clerk of superior court of any county, upon being paid the fees provided for by law or an affidavit of indigency, shall receive for filing any instrument appointing or designating a standby guardian pursuant to the provisions of this Article made by a domiciliary of the county and shall give a written receipt therefor to the person delivering it.  The filing of an appointment or designation of standby guardian shall be for the sole purpose of safekeeping and shall not affect the validity of the appointment or designation.
(b)	The appointment or designation shall be delivered only to:
(1)	The petitioner or designator;
(2)	The person appointed or designated as standby guardian or alternate standby guardian; and
(3)	Any other person directed by the court.
"§ 35A-1378.  Appointment of guardian ad litem.
(a)	The court may appoint a guardian ad litem to represent the best interests of the minor child and, where appropriate, express the wishes of the minor child.
(b)	The duties of the guardian ad litem, when appointed, shall be to make an investigation to determine the facts, the needs of the minor child and the available resources within the family to meet those needs, and to protect and promote the best interests of the minor child until formally relieved of the responsibility by the judge.
(c)	The court may order the guardian ad litem to conduct an investigation to determine the fitness of the intended standby guardian and alternate standby guardian, if any, to perform the duties of standby guardian.
"§ 35A-1379.  Bond.
The court shall not require the standby guardian of a minor child to post a bond.  The court in its discretion may require a bond pursuant to Article 7 of this Chapter if the standby guardian is appointed as guardian of the property of the minor child, but in no event shall such a bond be required prior to the occurrence of a triggering event.
"§ 35A-1380.  Accounting.
If a standby guardian is appointed guardian of the property of a minor child, the standby guardian shall comply with the requirements of Article 10 of this Chapter.
"§ 35A-1381.  Termination.
Any standby guardianship created under this Article shall continue until the child reaches 18 years of age unless sooner terminated by order of the court which issued the decree appointing the standby guardian, by revocation pursuant to this Article, or by renunciation pursuant to this Article."
Sec. 2.  This act is effective upon ratification.