When you hear the word guardian, you probably think of the person who steps in for a parent when their parent is unable to be there for them. While this is certainly something you can address in your North Carolina will, the guardianship concept refers to something a bit different. A guardianship is a service provided to individuals who allege to be or are deemed incompetent by a judge. And, according to the North Carolina Judicial Branch, the guardian’s role is to serve as a “surrogate decision maker and advocate” for that person, referred to as a ward. Now that you know what this legal construct refers to, we’ll help you better understand North Carolina’s guardianship statutes.
When a Person May Be Subject to a Guardianship in NC
The judicial branch resource cited above outlines how North Carolina law allows for the Court to establish a guardianship when there’s “clear, cogent and convincing evidence” that the prospective ward is incompetent or otherwise lacks sufficient capacity to adequately manage their own affairs, including arriving at or voicing decisions regarding their own self, family members, or property ownership.
Examples of individuals commonly subject to guardianships include:
- Individuals of any age who have a serious disease, such as epilepsy, cerebral palsy, or Parkinson’s, a physical impairment, or an alcohol or drug dependency
- Persons of any age who are suffering from severe mental illness or a memory disorder, such as Alzheimer’s Disease
- Children with profound disabilities as they turn 18
- Older parents or grandparents who have diminishing mental capacity
Who Can Serve as a Guardian of an Adult in North Carolina
Our state laws outline how the following parties can be appointed by the Court to care for an incompetent adult:
- An individual, including family members or friends
- A public agent, such as the North Carolina Department of Social Services
It should be noted that there are some instances in which an appointed guardian doesn’t have full control over all aspects of a ward’s life. This may occur if the ward had a power of attorney (POA) in place before being declared incompetent. In those cases, the person named in that POA may have control over finances or health care decisions, leaving the legal guardian responsible for rendering decisions over any other matters not covered in that legally binding document.
North Carolina Guardian Responsibilities
The actions of a guardian are subject to close scrutiny by the Court to ensure they’re:
- Preparing an initial inventory of their ward’s investments and other property
- Posting a guardianship bond in which a neutral third party guarantees a guardian will act in alignment with their obligations as per North Carolina General Statute § 35A-1230
- Making decisions that are in the best interests of their ward at all times, including ones regarding where they’re going to live, their health care, and finances
- Maintaining an accurate accounting of the spending and investment of the ward’s funds, culminating with the filling of an annual report with the Court
Guardians may be held personally liable for not upholding their legal responsibilities, including securing the Court’s approval when needed, before taking certain actions, for example, selling more than $5,000 of a ward’s property during a single accounting period per the North Carolina Administrative Office of the Courts.
How Long NC Guardianships Last
Our state’s statutes outline how individuals under guardianships in our state continue to be subject to them until one of the following situations occurs:
- A judge deems that their competency is restored
- Upon the ward’s death
- A guardian is deemed unfit for their role
- A guardian’s death
How a North Carolina Guardianship Attorney Can Help You
My role as an estate planning lawyer is to ensure my clients’ last wishes are upheld. This often involves me identifying a path for my clients to continue to provide for themselves while still alive and once they’re gone. The way guardianship fits into the mix is that if a person isn’t of sound mind, it can lead to them squandering resources needed to survive now and affect their ability to leave a financial gift for their loved ones once gone.
If you’re concerned about a family member’s mental or physical state and feel a guardianship needs to be established, contact our Wilmington law firm to discuss your concerns. On the flip side of the coin, if you’re under a North Carolina guardianship and want to better understand your rights to remove an existing guardian or terminate it, an estate planning attorney can discuss those options during your initial consultation with them. Contact our law firm for sound guidance on guardianships.