A guardianship is a court-approved legal arrangement by which someone obtains the power to act on behalf of an incompetent individual. If you know a minor or adult who needs assistance with making important life decisions, you may be able to obtain guardianship to ensure that person is cared for. The Estate Planning attorneys of Patrick, Harper & Dixon are well-versed in North Carolina’s guardianship laws. We can walk you through this important decision and help you with the process of becoming a legal guardian.
What Is A Guardianship?
When someone is incapable of managing their personal affairs or making decisions for themselves, a concerned individual – usually a loved one – may want to step in to ensure the person’s best interests are handled. To achieve this objective, guardianship can be obtained over a minor or an adult who lacks legal capacity. The individual with an incapacitating or limiting condition is known as a ward. A person, corporation, or public agent may serve as the guardian by making decisions on behalf of the ward.
Guardianship takes three forms in North Carolina:
Guardianship of the Person. This type of guardian is responsible for the custody and care of an individual. Common personal decisions that the guardian will make on the ward’s behalf involve:
- Medical and psychological care
- Living arrangements
Guardianship of the Estate. This is an arrangement by which a guardian specifically manages a ward’s financial matters. Included under this type of guardianship are the ward’s assets, investments, and businesses. The guardian has the power to make reasonable decisions regarding the collection of money, payment of debts, and similar matters.
General Guardianship. It should be noted that the above two types of guardians manage two different areas of a ward’s life – one personal, and one financial. A general guardian has the power to manage both personal and financial affairs for the ward. Because of the significant power that general guardians have, courts often restrict such authority if it becomes necessary to do so.
What Is The Process For Obtaining A Guardianship?
There are several steps to becoming a guardian:
First, a court must determine that an individual is incompetent. This is done by way of a petition, which is a formal application to the court to have the person determined incompetent and have a guardian appointed. There are important differences between how this works for an adult ward versus a child (minor) ward.
If the would-be ward is an adult, the individual who wants to become a guardian must typically present evidence of the person’s incompetence, including a capacity questionnaire. Sometimes, but not always, this involves medical information like healthcare records or a doctor’s affidavit.
Minors, who are under the age of 18, are automatically deemed by law to be incompetent. Although a petition still needs to be filed, no medical evidence is necessary because minors are automatically considered incompetent. In the case of a minor, this process is more about determining the necessity of a guardian. Even if a minor has living parents, if they receive property in the individual name, they may need to have a guardian appointed.
In both adult and minor guardianship matters a Guardian-Ad-Litem will be appointed to advise the Court on what is in the best interests of the would-be ward. The Guardian-Ad-Litem is typically a local attorney who will advise the Court on their opinion of the competency of the would-be ward, as well as the best guardian if one is necessary. Sometimes, a multi-disciplinary evaluation is also ordered by the Court to give an opinion on the competency of the would-be ward.
The second step is for the court to determine who can best serve as the ward’s guardian. In some cases, families may agree that an individual requires a guardian but not agree on who should serve in this role. The Guardian-Ad-Litem is also there to advise on this matter. To protect that ward, guardians must take an oath that they will perform their obligations in accordance with the law and the ward’s best interests.
In the case of general guardianship or guardianship of the person, the guardian must post a bond. The exact amount of the bond will vary from one case to another and is based on the number of assets held by the ward.
Finally, the guardian must obtain an order and letters of guardianship. If the court clerk grants the petition for incompetency and requests for the appointment of a guardian, they will issue an order appointing the guardian. The court clerk will also issue letters of guardianship to the guardian, which serve as legal proof of the guardian’s authority to act on behalf of the ward. They allow the guardian to begin carrying out his or her duties.
What Are Some Specific Duties Of Guardians?
Although every guardianship is different, guardians generally share many of the same or similar obligations. A few of the most common ones include:
For guardians of the person
- Make healthcare decisions for the Ward and manage their appointments
- Obtain housing for the ward
- Obtain home care or assisted living arrangements, as needed
- Handle the ward’s educational and employment matters
For guardians of the estate
- Manage the ward’s financial assets, including bank accounts and investments
- Make prudent investment decisions for the ward that will produce reasonable rates of return
- Manage the ward’s real and personal property
- Apply for public assistance benefits, such as Social Security Disability
- Make accounting to the Court of the ward’s assets, and ensure the assets are bonded
Additionally, all types of guardians owe the following duties:
- Duty of care: acting in the best interests of the ward and responsibly carrying out all obligations
- Keeping records: at all times, the guardian must keep updated records of all matters they manage for the ward
Contact Our Hickory Guardianship Attorney
Serving as a guardian is a serious responsibility, but it’s a wonderful way to ensure that a person lacking competency gets the assistance he or she needs. We’re here to help you become a guardian and understand your duties so you can faithfully carry them out. To get started, give Patrick, Harper & Dixon a call today.