Guardianships

When an individual is no longer able to care for themselves or make sound financial decisions, it is natural to want to step in and take control for their best interests. However, without adequate estate planning documents in place that gives you, or another person the authority to act on their behalf, you will need to petition the court to appoint a guardian for them.

Guardianship is a legal process where a court appoints a person, or agency, to make decisions and act on behalf of another individual who is unable to manage their own personal, health, and/or financial affairs.  In North Carolina guardianship can be created for any individual [referred to as a ward] that lacks competence to make decisions for themselves, such as vulnerable adults in long-term care facilities or other adults who may struggle with an injury or mental illness that results in a lack of capacity. In addition, guardianships can be obtained over minor children whose parents are unable to care for them due to incapacity, death, or other unfortunate situations.

North Carolina recognizes the following 3 types of guardianship that can be granted depending on the circumstances of the individual's capacity:

1. Guardianship of the Person - The guardian of the person has the authority to make decisions regarding the ward’s health and personal affairs.
2. Guardianship of the Estate - The guardian of the estate is responsible for managing the financial and business matters of the ward such as the management of funds and collecting and paying debts along with the authority to sue or defend any claims at law.
3. General Guardianship - Provides a person with the combined powers of the guardian over the person and guardian over the estate and allows a guardian to handle the ward’s financial and personal affairs.

The guardianship process can be stressful, especially when you are already concerned about providing care for the ward. The court process of obtaining guardianship is complex and not something to be taken lightly. There are many requirements that must be met and rules followed. Failure to adhere to those rules can mean delays in the court process and in providing much-needed care and attention to the ward. The process for seeking guardianship in North Carolina generally involves the following:

• Step 1 - File a petition with the court seeking guardianship where the ward resides. This petition will contain important details and needs of the ward, including an inventory of assets that may be involved.
• Step 2 - Potential guardians must make an oath and swear to fulfill their guardianship duties to the best of their abilities for the benefit of the ward.
• Step 3 -A bond must be posted by the guardian if the court requires one. The amount will depend on the type of guardianship and the situation's complexity. In some situations the clerk has the ability to waive the bond amount, however, that is at the court’s discretion on a case-by-case basis.
• Step 4 - The clerk will authorize the guardianship and issue letters that act as legal proof of the guardianship and provide the guardian with authority to act on behalf of the ward.

If you need guardianship over someone else it's likely not a planned event, leaving you with little time to waste in trying to navigate the system on your own. To ensure that the individual doesn’t experience any lapse in care or mismanagement of finances let our knowledgeable attorneys help you navigate the guardianship process. From completing the required paperwork to handling family member conflicts we can help ensure the process goes smoothly and the correct guardianship is established. We can also assist you after guardianship is granted to ensure your compliance with your guardianship responsibilities of maintaining adequate medical and financial records to show that you are serving in the ward’s best interest.