Do you know someone who cannot manage their own affairs? If your friend or relative does not have a power of attorney to handle financial or health care issues, they might need a guardian.
What is Guardianship?
Guardianship is a legal relationship that allows one person to make decisions on behalf of another person. It becomes necessary when someone (the ward) is deemed incompetent by the Court. If a Court finds the ward to be incompetent, a guardian is appointed to take care of the ward.
According to NC statute, a person is incompetent if he or she lacks the ability to:
- manage the adult’s own affairs; or
- make or communicate important decisions about the adult’s person, family, or property.
The lack of capacity could be due to mental illness, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury or similar cause or condition.
Someone who makes poor decisions probably will not qualify for guardianship. But, someone who is unable to understand the consequences of their actions may qualify for guardianship.
Types of Guardianship:
In North Carolina, there are three main times of guardianship:
1. Guardian of the Person
2. Guardian of the Estate
3. General Guardian
In addition to these three types, each one can be made “limited.”
Duties of a Guardian:
All guardians must act in the best interest of the ward.
Guardian of the Person:
A guardian of the person manages the ward’s physical well-being. This includes responsibility over the ward’s:
· personal effects such as clothing, toiletries and personal property
· education, employment and living space
· medical and mental health care.
Guardian of the Estate:
A guardian of the estate manages the ward’s financial well-being. He or she is in charge of managing the ward’s business affairs. The guardian of the estate has broad discretion in directing the financial affairs of the ward. For example, he or she may:
· Conduct day to day financial transactions;
· invest the ward’s funds;
· buy or sell property on behalf of the ward.
The guardian of the estate must post an insurance bond before taking control of the ward’s estate. Within 3 months of becoming the guardian, he or she must complete an inventory of the ward’s estate. Each year, the guardian of the estate must submit an accounting to the Clerk of Court. A guardian of the estate may be compensated by the ward’s estate. The amount is determined by North Carolina statute and will not exceed five percent of the receipts.
A general guardian has the duties and responsibilities of both the guardian of the person and the guardian of the estate. Like the guardian of the estate, a general guardian will be responsible for an inventory of the estate and an annual accounting. A general guardian may also be compensated for his or her time.
Any of the 3 types of guardianships may be limited in the Clerk’s discretion. If the guardianship is limited, the Clerk will determine what the Ward can perform on his or her own.
How is Guardianship Obtained?
If you want to become a person’s guardian, you must file a petition with the clerk of court. The petition must be filed in the county in which the potential ward (respondent) lives. You must then serve the respondent and any of the respondent’s next of kin. The respondent has a right to be represented by an attorney at the hearing.
It’s possible the clerk may order a multidisciplinary evaluation (MDE). The MDE will contain current medical, psychological and social work evaluations of the respondent. An MDE helps the clerk decide whether the respondent is incompetent. Any party may make a motion for the evaluation or the clerk may order it at his or her discretion.
At the hearing, the petitioner must show the respondent is incompetent by clear and convincing evidence. Both the petitioner and the respondent can offer evidence and witness testimony. Once the clerk determines the ward is incompetent, the clerk will decide what type of guardianship is best for the respondent.
Guardianship of a Minor Juvenile
Guardianship of a minor juvenile occurs on a very limited basis. If a minor receives property, such as an inheritance, a guardian of the estate may be appointed. A minor may also have a guardian appointed if both the minor’s parents have passed or have had their parental rights terminated. Lastly, if a minor is adjudicated abused or neglected, guardianship is an option for a permanent plan.
When is Guardianship Terminated?
A guardianship is terminated upon:
· The death of the ward;
· Transfer of the guardianship to another state;
· Entry of an order restoring the ward’s competency
Restoration of Competency
The guardian, ward or other interested person may file a motion to restore the ward’s competency. The ward has the right to be represented by counsel at a restoration hearing. Another multidisciplinary evaluation may be ordered if deemed appropriate. If the clerk finds by a preponderance of the evidence that the ward is competent, competence will be restored.
Obtaining guardianship over your loved one can be a complicated matter. Navigating the ins and outs of your duties can be an even greater challenge. Speak with one of our knowledgeable attorneys to get the best legal advice possible.