Is it legal to have custody forms notarized only or do we need an attorney?
Full Question:
Answer:
A standby guardian in North Carolina may be appointed using a power of attorney for child care offered by USLegalforms. This designation must be filed with the clerk of the superior court in the county where the child resides along with a petition to be appointed as a standby guardian within 90 days of the designation. The petition must be notorized. The parents will be served with notice and a hearing will be held.
A standby guardian has the authority to provide custody and care for a child, and generally act in the manner that a parent would. The standby guardian's authority may be made by consent of the parents, but does not itself divest the parents of any parental or guardianship rights, but gives the standby guardian concurrent authority with respect to the minor child. It must be witnessed by two persons over the age of 18 and unless terminated earlier, can be effective until the child is 18.
The following are NC statutes:
§ 35A-1374. Appointment by written designation; form.
(a) A designator may designate a standby guardian by means of a written
designation, signed by the designator 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 and at the direction of the
designator if the designator is physically unable to do so, provided that
the designation is signed in the presence of the designator and the two
witnesses.
(b) A designation of a standby guardian shall identify the designator,
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 or
the alternate standby guardian to become the minor child's guardian in
the event that the designator 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 general guardian 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 in G.S. 35A-1373(i)
through (l).
(d) The standby guardian or, if the standby guardian is unable or
unwilling to serve, the alternate standby guardian shall commence a
proceeding under this Article to be appointed guardian of the person or
general guardian of the minor child by filing a petition with the clerk
of superior court of the county in which the minor child resides or is
domiciled at the time of filing. The petition shall be filed after
receipt of either:
(1) A copy of a determination of incapacity made pursuant to G.S.
35A-1375;
(2) A copy of a determination of debilitation made pursuant to G.S.
35A-1375 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-1373(l); or
(4) Proof of death of the designator, 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
designator; (ii) the determination of debilitation of the designator and
the written consent of the designator; (iii) the designator's consent; or
(iv) proof of death of the designator, 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 standby guardian or alternate standby guardian
in front of a notary public or another person authorized to administer
oaths.
(g) A copy of the petition and written notice of the time, date, and
place set for a hearing shall be served upon any biological or adoptive
parent of the minor child who is not a designator, and on any other person
the clerk may direct, including the minor child. Service shall be made
pursuant to Rule 4 of the Rules of Civil Procedure, 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 may proceed to
consider the petition upon determining that all necessary parties are
before the court and agree to have the petition considered.
(h) If at or before the hearing any parent entitled to notice under
subsection (c) of this section presents to the clerk a written claim for
custody of the minor child, the clerk shall stay further proceedings
under this Article pending the filing of a complaint for custody of the
minor child under Chapter 50 of the General Statutes 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, the clerk shall
conduct a hearing and enter an order as provided for in this section.
(i) At the hearing, the clerk shall receive evidence necessary to
determine whether the requirements of this section have been satisfied.
The clerk shall enter an order appointing the standby guardian or
alternate standby guardian as guardian of the person or general guardian
of the minor child if the clerk 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 designator 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 the person designated as standby guardian or alternate
standby guardian as guardian of the person or general guardian of the
minor child;
(4) That the standby guardian or alternate standby guardian is fit to
serve as guardian of the person or general guardian of the minor child;
and
(5) 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.
(j) 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 under this
section; or
(2) Where the petition has already been filed, by executing a written
revocation, filing it in the office of the clerk with whom the petition
was filed, and promptly providing the standby guardian with a copy of the
written revocation.
§ 35A-1373. Appointment by petition of standby guardian; petition,
notice, hearing, order.
(a) A petitioner shall commence a proceeding under this Article for the
appointment of a standby guardian of a minor child by filing a petition
with the clerk of superior court of the county in which the minor child
resides or is domiciled at the time of filing. A petition filed by a
guardian of the person or a general guardian of the minor child who was
appointed under this Chapter shall be treated as a motion in the cause in
the original guardianship, but the provisions of this section shall
otherwise apply.
(b) A petition for the judicial appointment of a standby guardian of a
minor child shall:
(1) Identify the petitioner, 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 petitioner, upon the incapacity of the
petitioner, upon the debilitation of the petitioner 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 petitioner suffers from a progressively chronic
illness or an irreversible 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) A copy of the petition and written notice of the time, date, and
place set for a hearing shall be served upon any biological or adoptive
parent of the minor child who is not a petitioner, and on any other person
the clerk may direct, including the minor child. Service shall be made
pursuant to Rule 4 of the Rules of Civil Procedure, 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 may proceed to
consider the petition upon determining that all necessary parties are
before the court and agree to have the petition considered.
(d) If at or before the hearing any parent entitled to notice under
subsection (c) of this section presents to the clerk a written claim for
custody of the minor child, the clerk shall stay further proceedings
under this Article pending the filing of a complaint for custody of the
minor child under Chapter 50 of the General Statutes 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, the clerk shall
conduct a hearing and enter an order as provided for in this section.
(e) The petitioner's appearance at the hearing shall not be required if
the petitioner is medically unable to appear, unless the clerk determines
that the petitioner is able with reasonable accommodation to appear and
that the interests of justice require that the petitioner be present at
the hearing.
(f) At the hearing, the clerk shall receive evidence necessary to
determine whether the requirements of this Article for the appointment of
a standby guardian have been satisfied. If the clerk finds that the
petitioner suffers from a progressive chronic illness or an irreversible
fatal illness, that the best interests of the minor child will be
promoted by the appointment of a standby guardian of the person or general
guardian, and that the standby guardian and the alternate standby
guardian, if any, are fit to serve as guardian of the person or general
guardian of the minor child, the clerk shall enter an order appointing
the standby guardian named in the petition as standby guardian of the
person or standby general guardian of the minor child and shall issue
letters of appointment to the standby guardian. The order may also
appoint the alternate standby guardian named in the petition as the
alternate standby guardian of the person or alternate general guardian of
the minor child in the event that the person named as standby guardian is
unwilling or unable to serve as standby guardian and shall provide that,
upon a showing of that unwillingness or inability, letters of appointment
will be issued to the alternate standby guardian.
(g) Letters of appointment issued pursuant to this section shall state
that the authority of the standby guardian or alternate standby guardian
of the person or the standby guardian or alternate standby general
guardian is effective upon the receipt by the guardian of a determination
of the death of the petitioner, upon receipt of a determination of the
incapacity of the petitioner, upon receipt of a determination of the
debilitation of the petitioner and 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.
(h) If at any time prior to the commencement of the authority of the
standby guardian the clerk, upon motion of the petitioner or any person
entitled to notice under subsection (c) of this section and after
hearing, finds that the requirements of subsection (f) of this section
are no longer satisfied, the clerk shall rescind the order.
(i) Where the order provides that the authority of the standby guardian
is effective upon receipt of a determination of the death of the
petitioner, the standby guardian's authority shall commence upon the
standby guardian's receipt of proof of death of the petitioner such as a
copy of a death certificate or a funeral home receipt. The standby
guardian shall file the proof of death in the office of the clerk who
entered the order within 90 days of the date of the petitioner's death or
the standby guardian's authority may be rescinded by the clerk.
(j) Where the order provides that the authority of the standby guardian
is effective upon receipt of a determination of the incapacity of the
petitioner, 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-1375. The standby guardian shall file a copy of
the determination of incapacity in the office of the clerk who entered
the order within 90 days of the date of the receipt of such
determination, or the standby guardian's authority may be rescinded by
the clerk.
(k) Where the order provides that the authority of the standby guardian
is effective upon receipt of a determination of the debilitation of the
petitioner, 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-1375, 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 in the office of
the clerk who entered the order within 90 days of the date of the receipt
of such determination, or the standby guardian's authority may be
rescinded by the clerk.
(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 in the
office of the clerk who entered the order within 90 days of the date of
such written consent, or the standby guardian's authority may be
rescinded by the clerk.
(m) The petitioner may revoke a standby guardianship created under this
section by executing a written revocation, filing it in the office of the
clerk who entered the order, 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
clerk who entered the order and promptly providing the petitioner with a
copy of the renunciation. Upon the filing of a renunciation, the clerk
shall issue letters of appointment to the alternate standby guardian, if
any.
Please see the information at the following links:
http://www.standbyguardianship.org/national/nc.asp
http://definitions.uslegal.com/p/power-of-attorney/
http://definitions.uslegal.com/g/guardianship/
http://definitions.uslegal.com/s/standby-guardian/
http://lawdigest.uslegal.com/estate-planning/guardianships-and-conservatorships/
http://lawdigest.uslegal.com/estate-planning/power-of-attorney-overview/
Please see the forms at the following links:
http://www.uslegalforms.com/nc/NC-P007.htm
http://www.uslegalforms.com/nc/NC-E-209.htm
http://www.uslegalforms.com/nc/NC-E-409.htm
http://www.uslegalforms.com/nc/NC-P009.htm