Background Materials
- North Carolina Standby Guardianship Statute, NCGS 35A-1371 et seq
- Permanency Planning for Children of HIV-Infected Parents , by Carolyn McAllaster
- Standby Guardian Checklist You should print out a copy of the checklist and keep it in all guardianship files. Check each step as you go along.
- Checklist of Planning Considerations in Permanency Planning Cases
- Everything You Always Wanted to Know about Standby Guardianship Hearings.
Interview Forms
- Standby Guardian Intake & Absent Parent Questionnaire
- Standby Guardianship Brochure Give the client one of these brochures before or at the first interview.
- Joint Representation Agreement If we are representing both the Parent and Standby Guardian, you will need to have both clients sign an informed consent to the dual representation.
Documents and Procedures
Note: many of the forms below are pdf files that can be filled in and saved online using Acrobat Professional
Two Methods:
A parent with a progressively chronic or irreversibly fatal illness may plan for her/his children by naming a suitable person as a "Standby Guardian." There are two methods for appointing a Standby Guardian:Parent Petition (or "do-it-now" method and Designation (or "do it later/Guardian as petitioner" method). In the Parent Petition method, a parent files a petition with court to have a Standby Guardian appointed. In the Designation method, the parent signs a Designation of Standby Guardian in front of two witnesses. The person named as Standby Guardian must file a petition with the court at a later date. In both situations, the selected Standby Guardian has no legal authority until one of four "triggering events" occurs.
Be sure to use the correct set of forms, depending on who is the petitioner in your case. If the Parent is the petitioner, go to the section of this page for "Parent Petition Method/Do It Now" If the Standby Guardian will be the petitioner, you will use different forms. Go to the section of this page for "Designation /Do It Later"
Parent Petition Method/Do It Now:
A parent who is ready to file with the court for appointment of a standby guardian will follow the "petition" method. On behalf of this parent we will file a Petition with the court, serve the Petition and a Notice of Hearing on the absent parent, and represent the client at a hearing before the Clerk of Court. Even when we plan to file a Petition, we also have the client sign a Written Designation as a safeguard. Note that all documents must be prepared for each child. There will be a separate court file for each child.
Documents
USE these forms only if the parent is petitioner. If guardian is petitioner, see below
Documents for Filing Petition (Parent as Petitioner)
- Written Designation We have the client sign this document as a backup. We keep the original and give the client a copy.
- Information for Designated Standby Guardian - this should be given to the client or designated SBG, along with the signed designation.
- Medical Release - We need the client to sign a medical release so we can obtain an affidavit from her/his physician verifying that the client has a progressively chronic or irreversibly fatal disease.
- Petition for Appointment of Standby Guardian for Minor - AOC-E-209
- Petition to Sue as an Indigent - AOC-G-106
- Estates Action Cover Sheet - AOC-E-650
- Notice of Hearing
Service: Unless the absent parent is deceased, we must serve the Petition and Notice of Hearing on the absent parent in accordance with Rule 4 of the North Carolina Rules of Civil Procedure . We serve by one of three methods: Sheriff, Certified Mail, or Publication. Discuss service requirements and strategies with your supervising attorney. If the absent parent is deceased, we must obtain a copy of the death certificate and provide a copy to the court.
- Sheriff: Prepare Sheriff's Return of Service and send to the Sheriff in the County in which the absent parent resides, along with a cover letter, the Petition, and the Notice of Hearing
- Certified Mail: If you serve by this method, you will send the Petition and Notice of Hearing by Certified Mail. Discuss details with your supervisor. After we receive the "green card" documenting receipt, prepare an Affidavit of Service by Certified Mail for your supervisor's signature
- Publication: If serving by publication, you must prepare a Notice of Service by Publication This is sent to the appropriate legal newspaper. Discuss the details with your supervisor. Use the Service by Publication Checklist. See our overview of Service by Publication. Prior to the hearing, you will also need to prepare a Due diligence affidavit outlining the steps taken to locate the absent parent.
- People Finding: Use this guide to for resources on finding the absent parent. Be sure to keep careful records of the searches you perform.
Documents for the Hearing (Parent as Petitioner)
- Physician Affidavit for Use in Standby Guardianship Proceeding Start work on this document well before the hearing -- it may take some time to make contact with the Physician and get the affidavit signed.
- Appointment of Resident Process Agent and Acceptance of Appointment - AOC-E-500 (fillable pdf) - This form is needed if the Standby Guardian does not live in North Carolina. This form requires the signature of the agent, so if you need this form, get it signed well before the hearing.
- Authorization of Student Representation - This should have the name of the student who will be appearing at the hearing.
- Proof of Service (see above)
- Waiver of Bond
-
Consent to Commencement of Standby Guardian’s Authority after Hearing
- Note: To be prepared if client wants guardianship to commence immediately after hearing
- Order on Petition for Appointment of Standby Guardian for Minor - AOC-E-409
- Letters of Appointment-Standby Guardian of the Person - AOC-E-412
- Letters of Appointment-Standby General Guardian - AOC-E-411
- Letters of Appointment Guardian of the Person - AOC-E-408 (This is used by some Clerks when guardianship has triggered, as when the Petitioner is the Guardian)
-
Oath - AOC-E-400 (fillable pdf)
Designation Method/Do it Later/Guardian as Petitioner:
A parent with a progressively chronic or irreversibly fatal disease may designate a Standby Guardian by signing a Designation of Standby Guardian in front of two witnesses. When using this method, there is no immediate requirement that the named guardian be approved by the court. The Standby Guardian will not have legal authority until one of four possible "triggering events" has occurred. When a triggering event occurs, the Standby Guardian designated by the parent will have legal authority for 90 days. During that time, the Standby Guardian must file a petition in the court to continue the legal authority until the child reaches 18. This method of appointing a guardian is useful when the parent is unwilling or unable to follow through with a court case at the present time.
- Form: Written Designation
- Consent to Commencement of Guardianship after Written Designation. The parent can trigger the guardianship by signing this consent form. This would give the Guardian 90 days authority; during this time the Guardian and would need to begin the Standby Guardian's petition process.
- Information for Designated Standby Guardian - this should be given to the client or designated SBG, along with the signed designation.
Documents
Use these forms only if the GUARDIAN is petitioner. If parent is petitioner, see above.
Documents for Filing Petition (Guardian as petitioner)
- Written Designation This written designation will already have been completed and you should also have evidence of one of the four triggering events to attach to your petition.
- Medical Release We need the client to sign a medical release so we can obtain an affidavit from her/his physician verifying that the client has a progressively chronic or irreversibly fatal disease.
-
Standby Guardian's Petition for Appointment as Guardian for Minor - AOC-E-210
- Note: An original of the Written Designation must be attached to the Petition, as well as evidence of the triggering event.
- Petition to Sue as an Indigent - AOC-G-106
- Estates Action Cover Sheet - AOC-E-650
- Notice of Hearing
Service of papers: See Above.
Documents for the Hearing (Guardian as petitioner)
- Appointment of Resident Process Agent and Acceptance of Appointment - AOC-E-500- This form is needed if the Standby Guardian does not live in North Carolina. This form requires the signature of the agent, so if you need this form, get it signed well before the hearing.
-
Proof of Service:
- Due diligence affidavit -- this is to be used for cases where we served the absent parent by publication. It outlines the steps taken to locate the absent parent.
- Authorization of Student Representation - This should have the name of the student who will be appearing at the hearing.
- Waiver of Bond If parent has died, it may not be possible to get this form.
- Order on Standby Guardian’s Petition for Appointment as Guardian of Minor AOC-E-410
- Letters of Appointment - Standby Guardian of the Person - AOC-E-412
- Letters of Appointment-Standby General Guardian - AOC-E-411
- Letters of Appointment Guardian of the Person - AOC-E-408 (This is used by some Clerks when guardianship has triggered, as when the Petitioner is the Guardian)
- Oath - AOC-E-400
- Application for Appointment as Guardian of a Minor - AOC-E-208
- Order on Application for Appointment of Guardian - AOC-E-406
Other Permanency Planning Documents
Power of Attorney Documents for Minors