Guardianship pending | Poyner Spruill LLP

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What happens when a person responsible for an incapacitated family member or a minor child is no longer able to do so? For a guardian serving under the authority of a court, the process of appointing a successor can be long and tedious. The greatest concern for the incapacitated person (“Ward”) is to have someone legally responsible and able to make decisions on their behalf. If the primary guardian dies or becomes incapacitated, this could leave the minor child or ward without care for a long time.

This 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 care for a minor child or ward if a guardian dies or becomes incapable himself. Even if there are friends and family to help you, the process of having another guardian appointed can take time. In North Carolina, it can take between 30 and 60 days for a court to grant guardianship authority following a hearing. Depending on the Ward’s needs, this delay in having someone in charge can be catastrophic. The interim period could see quarters committed to facilities while waiting for someone else to be appointed. The stress of a gap in care can have very dramatic effects on wards that need round-the-clock care or have delicate conditions, such as severe autism or mental illness. Depending on the needs of the neighborhood, the named caretaker can step in and take over if something happens.

An important option to deal with this situation is documented in Section 35A.21 which allows for the appointment of a standby guardian. There are two ways to appoint a standby guardian. The first is for the guardian to file a petition with the court clerk 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 self-appoint a successor pending guardian.

The pending guardian procedure requires the current guardian to be suffering from a progressively chronic or fatal illness. If this requirement is met, a motion can be filed and the court clerk can appoint a standby guardian who can immediately take over without interruption of care if any of the following events occur:

  1. Death of the applicant,
  2. Incapacity of the applicant,
  3. Weakness of the Applicant,
  4. Written consent of the applicant, or
  5. Signature by the applicant of a written consent indicating that the authority of the reserve guardian is in effect.

The second method of appointing a standby guardian allows the current guardian to appoint the standby guardian in writing if they do so in the presence of two witnesses. There is a limit to this procedure in that the written designation is only effective for 90 days. During this 90 day period, the waiting guardian will need to apply for guardianship similar to any other guardianship. That being said, the 90-day period can provide enough coverage to stabilize the care of a minor ward or child and allow ample time for petition.

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