A guardianship is a legal arrangement by which an individual (or, in some cases, a public agency) is appointed by a court to manage the personal affairs of, and make decisions for, someone who lacks the ability to do so. The individual or agency is known as a guardian. If there is someone in your life who you believe is incapable of taking care of him- or herself, you might consider becoming a guardian. The estate and fiduciary litigation attorneys of Patrick, Harper & Dixon can walk you through the process.
Guardians serve as decision-makers for individuals, known as wards, who are deemed incompetent by a court. The court must adjudicate not only the incompetency of the ward, but must set forth the specific responsibilities to be exercised by the guardian.
Although courts establish guardianships to protect and look after the ward, the ward must be allowed to participate as much as possible in his or her own decisions. In other words, the law require sthe ward to be afforded as much opportunity – within the limitations imposed by the incompetency – to live and enjoy his or her life.
Guardianships are sometimes confused with powers of attorney. One important difference is that with a power of attorney, the individual who delegates authority (known as the principal) chooses the attorney-in-fact who will assist him or her with certain decisions. In a guardianship proceeding, the court makes this determination. Another is that the principal can revoke a power of attorney, but a person who has been adjudicated incompetent cannot remove their guardian’s authority without action by the court.
There are other alternatives to guardianships, so if you know of someone with limited mental or physical abilities, ask an experienced North Carolina estate and fiduciary attorney about your options.
North Carolina statutes set forth three different types of guardians:
Guardian of the estate: This is an individual who is responsible for a ward’s finances and business matters. Paying debts and collecting money are just two obligations of these guardians.
Guardian of the person: This refers to someone who manages the care and custody of the ward. These guardians make decisions regarding psychological and medical care, housing, employment, and education. Guardians of the person do not have authority to manage the ward’s financial or business affairs.
General guardian: The general guardian holds the powers of both a guardian of the estate and a guardian of the person. The guardian may therefore make both personal and financial decisions for the ward.
These are the steps required to become a guardian:
Petition the court: The individual or agency wanting to be a guardian must file an application with the court. The petition will include details about the applicant and the need for a guardianship. There must be clear evidence that the individual alleged to be incompetent lacks the ability to manage his or her own affairs; make important decisions affecting him- or herself; or communicate those decisions. The petition should also include an inventory of the would-be ward’s property.
Oath and bond: The party wanting to become a guardian must take an oath that he or she will faithfully and responsibly exercise the duties of guardianship within the law. The applicant must also post a bond with the court, the amount of which will depend on how complicated the matter is.
Orders and letters: If the clerk of court approves the request, an order authorizing the guardianship will be issued. Letters will be given to the guardian which allows him or her to begin carrying out guardianship duties.
We understand how concerned you are for the well-being of the person over whom you wish to become a guardian. Our law firm wants to help you provide the care and protection that person needs. Give Patrick, Harper & Dixon a call today.