§ 35A-1374. Appointment by written designation; form.
§35A‑1374. Appointment by written designation; form.
(a) A designator maydesignate a standby guardian by means of a written designation, signed by thedesignator in the presence of two witnesses at least 18 years of age, otherthan the standby guardian or alternate standby guardian, who shall also signthe writing. Another person may sign the written designation on the behalf ofand at the direction of the designator if the designator is physically unableto do so, provided that the designation is signed in the presence of thedesignator and the two witnesses.
(b) A designation of astandby guardian shall identify the designator, the minor child, the persondesignated to be the standby guardian, and the person designated to be thealternate standby guardian, if any, and shall indicate that the designatorintends for the standby guardian or the alternate standby guardian to becomethe minor child's guardian in the event that the designator either:
(1) Becomesincapacitated;
(2) Becomes debilitatedand consents to the commencement of the standby guardian's authority;
(3) Dies prior to thecommencement of a judicial proceeding to appoint a guardian of the person orgeneral guardian of a minor child; or
(4) Consents to thecommencement of the standby guardian's authority.
(c) The authority ofthe standby guardian under a designation shall commence upon the sameconditions as set forth in G.S. 35A‑1373(i) through (l).
(d) The standbyguardian or, if the standby guardian is unable or unwilling to serve, thealternate standby guardian shall commence a proceeding under this Article to beappointed guardian of the person or general guardian of the minor child byfiling a petition with the clerk of superior court of the county in which theminor child resides or is domiciled at the time of filing. The petition shallbe filed after receipt of either:
(1) A copy of adetermination of incapacity made pursuant to G.S. 35A‑1375;
(2) A copy of adetermination of debilitation made pursuant to G.S. 35A‑1375 and a copyof the designator's written consent to such commencement;
(3) A copy of thedesignator's written consent to such commencement, made pursuant to G.S. 35A‑1373(l);or
(4) Proof of death ofthe designator, such as a copy of a death certificate or a funeral home receipt.
(e) The standbyguardian shall file a petition pursuant to subsection (d) of this sectionwithin 90 days of the date of the commencement of the standby guardian'sauthority under this section, or the standby guardian's authority shall lapseafter the expiration of those 90 days, to recommence only upon filing of thepetition.
(f) A petition filedpursuant to subsection (d) of this section shall:
(1) Append the writtendesignation of such person as standby guardian; and
(2) Append a copy ofeither (i) the determination of incapacity of the designator; (ii) thedetermination of debilitation of the designator and the written consent of thedesignator; (iii) the designator's consent; or (iv) proof of death of thedesignator, such as a copy of a death certificate or a funeral home receipt;and
(3) If the petition isby a person designated as an alternate standby guardian, state that the persondesignated as the standby guardian is unwilling or unable to act as standbyguardian, and the basis for that statement; and
(4) State whether thereare any lawsuits, in this State or any other jurisdiction, involving the minorchild and, if so, identify the parties, the case numbers, and the states andcounties where filed; and
(5) Be verified by thestandby guardian or alternate standby guardian in front of a notary public oranother person authorized to administer oaths.
(g) 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 designator, 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 the sheriff,the sheriff shall make such service without demanding his fees in advance.Parties may waive their right to notice of the hearing and the clerk mayproceed to consider the petition upon determining that all necessary partiesare before the court and agree to have the petition considered.
(h) 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.
(i) At the hearing,the clerk shall receive evidence necessary to determine whether therequirements of this section have been satisfied. The clerk shall enter an orderappointing the standby guardian or alternate standby guardian as guardian ofthe person or general guardian of the minor child if the clerk finds that:
(1) The person was dulydesignated as a standby guardian or alternate standby guardian;
(2) That (i) there hasbeen a determination of incapacity; (ii) there has been a determination ofdebilitation and the designator has consented to the commencement of thestandby guardian's authority; (iii) the designator has consented to thatcommencement; or (iv) the designator has died, such information coming from adocument, such as a copy of a death certificate or a funeral home receipt;
(3) That the bestinterests of the minor child will be promoted by the appointment of the persondesignated as standby guardian or alternate standby guardian as guardian of theperson or general guardian of the minor child;
(4) That the standbyguardian or alternate standby guardian is fit to serve as guardian of theperson or general guardian of the minor child; and
(5) That, if thepetition is by a person designated as an alternate standby guardian, the persondesignated as standby guardian is unwilling or unable to serve as standbyguardian.
(j) The designator mayrevoke a standby guardianship created under this section by:
(1) Notifying thestandby guardian in writing of the intent to revoke the standby guardianshipprior to the filing of the petition under this section; or
(2) Where the petitionhas already been filed, by executing a written revocation, filing it in theoffice of the clerk with whom the petition was filed, and promptly providingthe standby guardian with a copy of the written revocation. (1995,c. 313, s. 1.)