What Does it Mean to be a Guardian?
"Legal guardianship is a legal status created by a court that grants a person or an entity the authority to make decisions on behalf of another person. The person who is given this status is known as the "guardian." A person who is subject to the legal authority of a guardian is known as the "ward." Legal guardianship over a person has been likened to the responsibility that parents have over their children. Just as parents need to look out for their children’s best interest as they are growing up, a guardian is given the same role and responsibilities to care for the "ward" when he or she is unable to do so.
The general principle behind legal guardianship is that a party with capacity goes to a court to ask for the authority to manage the finances and/or make other decisions for a person who lacks capacity to do those things. Legal guardianship exists in reference to a person. Once the person who is subject to the legal guardianship dies , the legal guardianship ends and the guardian no longer has that legal agreement with the now-deceased ward. Legal guardianship terminates at the death of the person subject to the guardian’s legal responsibility. At that point, the legal authority to act on behalf of another person shifts to that person’s estate representative, such as his or her executor or administrator.
Sometimes a person may need a legal guardian. When it is clear that a person cannot manage his or her finances on his or her own and has not previously signed a power of attorney to choose someone else to manage his or her finances, the person may need a guardian to help him or her.
Adult Guardianship Options in NC
There are several different types of guardianship for adults in North Carolina. It is important to understand each role and how each role interacts with the other, so that you or your loved one can get the proper assistance you need. You may also want to understand some roles are not possible, or perhaps are best done by others.
General Guardian of Estate & Person: this role combines both the duties of guardian of the estate and guardian of the person. If the estate is limited (under $50,000), the Clerk of Superior Court is authorized to appoint a general guardian. In every other case, the general guardian is appointed by Superior Court following a hearing.
Guardian of the Estate: the clerk of court appoints a guardian of the estate, who handles funds, property, income, refunds, and other assets. A guardian of the estate must file an inventory of the assets, and an annual accounting that shows how the assets were used. Whenever the guardian of the estate wants to sell property, borrow against property, or do something unusual with the assets, the guardian must obtain permission from the Clerk of Court.
Guardian of the Person: the Clerk of Court appoints a guardian of the person. Responsibilities include deciding where the person lives, transporting the person to the doctor, managing all medical decisions, and communicating with family members. Appointing a guardian of the person is often a complicated process. A hearing before the Clerk of Court is required. In many cases, the persons who would be appointed guardian of the person oppose the appointment, or the person who would be appointed guardian of the person has a problem of their own.
Guardian ad Litem: an attorney argues for the appointment of a guardian. The attorney prepares a report recommending whether the guardian can be appointed, and which type of guardian should be appointed. If the person has previously told an attorney his or her wishes on the type of guardian, the attorney owes a duty to that person to advocate respect for those wishes. The attorney’s job is independent of the opposing parties. Appointing a guardian ad litem is not required, but it makes sense in many complicated situations.
Emergency Guardian: an emergency guardian can be appointed after a hearing, but the emergency guardian only lasts 30-60 days, until a regular guardian can be appointed. The emergency guardian is limited to only what is absolutely essential. An attorney should be hired to prepare the petition for an emergency guardian. You have a chance to contest the appointment. A hearing is held the next business day.
Permanent Guardian: when an emergency guardian or temporary guardian is appointed, the court holds a hearing to consider appointing a permanent guardian. The recommended guardian is given notice of the hearing, and has a chance to contest the appointment. A guardian ad litem is appointed by the court, who investigates the situation and sends in a report. If the person has previously expressed his/her wishes regarding a guardian, the attorney will advocate for those wishes.
Temporary Guardian: the clerk of court appoints a temporary guardian if the person has dementia and is not capable of expressing his or her wishes regarding a guardian. A guardian ad litem is not required, and there is no contest process. Appointing a temporary guardian doesn’t stop a guardian ad litem from being appointed later.
Who Qualifies for Guardianship?
The general eligibility requirements for serving as an adult guardian in North Carolina can be found in N.C. Gen. Stat. 35A-1241(a) and (b). In short, it states that "a person who is 18 years of age or older, who is a resident of the State of North Carolina, and who is not otherwise disqualified … may qualify to be appointed by the clerk or a judge of the general court of justice to serve as guardian of an individual."
There are also a number of statutory disqualifications that may affect eligibility for serving as a guardian. These are listed in N.C. Gen. Stat. 35A-1210. Those disqualification factors include: (1) being a minor or someone who has had a past ruling of incompetency; (2) being a spouse of the ward, their parent or sibling; and (3) being a convicted felon, registered sex offender or listed as an adult protective services perpetrator. Additional disqualification factors apply to persons who have filed a petition for guardianship of the proposed ward.
North Carolina’s Guardianship Process
Once the determination is made that an individual needs a guardian and can no longer manage their own affairs, a petition for guardianship must be filed with the Clerk of Superior Court in the county where the proposed ward resides (in the case of an adult, where they will remain until they reach their majority age of 18, this is the county where the adult resides at the time of filing as well). The petition is filed by the individual proposing themselves or someone else as the guardian. The petition must contain their specific requests to the court and their justification for their fitness to serve as the proposed guardian. There are different forms that must be completed depending on whether the proposed ward has a guardian already, if a temporary guardianship has already been established or if they have been declared to be incompetent in another state.
The proposed ward will then receive a copy of the petition. The proposed ward will then be served with a notice of hearing for the appointment of a general guardian and a citation instructing him or her to appear and show cause why a general guardian should not be appointed. The citation must be delivered personally to the proposed ward by the sheriff or his deputy, or by a person 18 years of age or older who is not a party to the action. If an adult is unable to be located after a thorough search, or if there is great concern that service on the proposed ward may result in harm, the citation can be published at least once in the local newspaper for the county in which the proposed ward resides. Even if the proposed ward is served a copy of the petition and is unable to be found, the court process will continue and eventually reach an end.
All petitions for guardianship must be evaluated by the clerk. If the proposed ward is not physically present, the clerk must decide whether examination by a physician is necessary to determine competency. Upon concluding that a guardian is necessary, the clerk issues Letters of Incompetency and appoints either the person who filed the petition or someone else as the guardian of the proposed ward.
Following the appointment of the guardian, a meeting must be held within five days of the appointment to discuss the guardianship plan. This is where the proposed guardian proposes handling the affairs of the proposed ward. This plan must be presented to the Clerk of Superior Court within 30 days of the appointment of the general guardian.
Power and Duties of a Guardian
Upon appointment, the guardian is responsible for, and legally binds the ward in, all contracts for necessaries. At common law, at some point in time, the guardian may be able to challenge this rule of law. Roberts v. Lay, 67 N.C. App. 315, 312 S.E.2d 623 (1984); Twilley v. Twilley, 75 N.C. App. 148, 330 S.E.2d 546 (1985). Though the appointed guardian is permitted to bind the ward right away in contracts for necessaries (e.g., food, clothing, shelter, medical care)(which seems somewhat contradictory to future excursions of the finest wines and cigars), he/she may have a legal right to repudiate the contract after being appointed. However, on appointment, the guardian has custody of the ward’s person and estate. N.C. Gen. Stat. § 35A-1241; N.C. Gen. Stat. § 35A-1213(b). As he/she is charged with managing all the assets of the estate, is prohibited from self-dealing, prohibited from entering into expenditures for the ward’s benefit that do not confer a benefit upon the ward that would otherwise come from third parties, and is charged with "reasonable care, diligence and prudence" in handling the affairs of the ward . N.C. Gen. Stat. § 35A-1242(4); N.C. Gen. Stat. § 35A-1242(3); N.C. Gen. Stat. § 35A-1243. More specific powers of the guardian include the ability to enter into contracts, make gifts (limited to amounts consistent with the ward’s past practice with regard to charitable giving and promotional campaigns) and buy and sell assets. N.C. Gen. Stat. § 35A-1244. The guardian may also be entitled to compensation for services rendered to the ward up to the limit set by the Clerk of Superior Court. N.C. Gen. Stat. § 35A-1247.
Guardians are prohibited from taking certain actions absent prior approval from the Clerk of Superior Court. These actions include (a) any sale or mortgage of real property; (b) the renunciation, release, nonassertion or compromise of any claim owed to the ward; (c) furnishing an annuity, insurance protection or other security to the ward; and (d) any compromise of a claim owed to the ward. N.C. Gen. Stat. § 35A-1246.
Alternatives to Guardianship
Alternatives to adult guardianship can include the use of a power of attorney, trust, or a representative payee. These alternatives are less restrictive and leave the person with the ability to make some of their own choices. The most commonly used alternative is the Durable Power of Attorney. Remember that a power of attorney is only effective while the individual is able to understand its powers. Being unable to deal with finances and property does not mean the person is incompetent to manage the rest of their life. Astute professionals in this field recognize that it may be better to obtain a guardian even in those situations where a POA is available.
A power of attorney can be used to deliver care management, medical care, and manage the social security income and money management. A guardianship is more likely to be appropriate when full authority and decision making power is taken away from the person. A POA does not give away the authority to decide where the person will live, but often a guardian does. Even so, this is becoming less common. In fact, if the demand does not reduce, the Juvenile Court may need to appoint case managers to handle the more limited cases.
What to Expect with a Guardianship
The physical and emotional chaos that can arise from cognitive disorders can lead to the appointment of a guardian for an adult. The emotional chaos can take many forms. The guardian itself may be coping with feelings of abandonment, as the individual who in years past cared for them, now cannot. The parent may feel guilt at their incapacity or feel resentful of a once obedient child. The individual who has suffered an injury or a sudden debilitating illness may feel angry that life will never be the same again and they may lash out against those who would care for them. The challenges placed upon families or friends who are caregivers can create friction and arguments which last a lifetime. These issues should be explored before a proceeding is filed. There is the potential for lasting damage to relationships within a family if the person you place in a position of power misuses that opportunity.
Even the process of obtaining a guardianship can have unintended legal consequences. A Guardianship proceeding strips a person of their rights. For example, a disabled adult may be required to consent to a guardian which will immediately terminate their ability to contract for the sale of real estate or open a bank account. The period of incapacity could be very short. As a result, it is critical to review all affairs of the disabled person before a Guardianship proceeding is initiated to make sure that no unintended benefit is lost.
Events and Websites in NC
While finding qualified representation is a good first start, you may also want to support yourself with local resources, groups, or other individuals going through similar experiences. The best way to find resources in your area is to research through social media-specifically Facebook-to find groups or pages specific to where you live. Below is a list of local and national organizations to help get you started: Legal Aid of North Carolina provides free and low-cost civil legal assistance and has a hotline in every local area. It can help with matters such as SSI benefits, Medicaid denial, guardianship, public housing issues, tenant protections, domestic violence protection orders, elder law issues, foreclosure, and more. Disability Rights North Carolina is the federally designated Protection and Advocacy System that represents North Carolinians with disabilities to ensure their rights are respected and that they are provided the full protections of the law . Additionally, they have a helpline that addresses questions about disability services and supports, the Americans with Disability Act, Social Security disability, government benefit programs, guardianship, Medicaid waiver eligibility, special education, advocacy, social security disability benefits, intermediate care facility for individuals with intellectual disabilities, Vocational Rehabilitation, Medicaid innovation waivers, Access to Justice, UNC TEACCH Autism program, transition from school to post-school for individuals with disabilities, emergency family planning decisions, civil rights of people with disabilities, special Medicaid programs and other disability services, voting accessibility, and much more. NC Guardianship Association for the Formerly Incapacitated and Aging People with Mental Illness provides advocacy for formerly incapacitated and aging persons with mental illness. It works to protect the rights of individuals who receive guardianship services by providing information and support for former clients, their guardians, and professionals in the field. TASH is an international disability rights advocacy organization. Its mission statement: TASH advances inclusive communities, social development, and the rights of people with the most significant disabilities, their families, and communities, using open-minded, non-partisan non-violent actions.