What is Legal Guardianship in NC?
Legal guardianship is an arrangement where a person (guardian) is selected to make various decisions on behalf of an individual (ward) who has been proven to lack the capacity to manage their estate or further take care of their family.
An adult might have dementia, a stroke, or other mental or physical disabilities, rendering them incapable of caring for themselves or others. It should be noted that the guardianship process is for adults without a durable power of attorney stating who should make decisions regarding someone’s health and estate when they become incapacitated.
Guardianship of a Minor
However, a ward doesn’t always have to be an adult. A minor’s biological parents could have died, or their parental duties might otherwise be terminated. In this case, you have the power to establish a legal guardian for your children in your Will.
This appointed individual makes decisions regarding your children’s estate, personal care, and other designated areas until they reach the age of 18. Since minors are deemed incompetent and require responsible adults to make decisions that benefit their overall well-being, guardianship is often necessary under these circumstances.
Types of Guardianships in NC
Depending on the situation, the court may grant various types of guardianships in North Carolina, including:
- General Guardianship – In charge of an individual’s personal care and estate.
- Guardianship of the Person – Appointed to perform duties related to a person’s care, custody, and control.
- Guardianship of the Estate – Responsible for financial decisions regarding a person’s estate, property, or business affairs.
- Limited Guardianship – This allows the ward to receive help or assistance only in the areas they need it, rather than giving a guardian unnecessary power.
- Interim Guardianship – This is required only when a potential risk could harm an individual or their estate.
What Can the Guardian Be Authorized to Do?
The goal of the guardian’s duties is to provide for the ward’s overall care, comfort, and maintenance. Specifically, the guardian has the power to make decisions regarding the ward’s:
- Health care, including rehab and medical treatment
- Personal property, including vehicles and furniture
- Place of residence, whether it be in-State or out-of-State
These are only a few powers the guardian has. Essentially, the guardian is authorized to give consent on behalf of the ward for any type of care, counsel, treatment, or service.
What Is the Guardian’s Fiduciary Duty?
Although the guardian’s powers are broad, guardians don’t control the ward’s life unchecked. Any services the guardian authorizes or decisions they make must solely benefit the ward, not themselves.
The guardian has a fiduciary obligation to act in the ward’s best interest, including deciding an appropriate treatment plan for an incapacitated adult or choosing a proper education program for a minor.
Additionally, a guardian you select to care for your kids in the event you and your spouse pass away must act as you would had you not suffered an untimely death. That’s why it’s crucial to designate a legal guardian you trust to carry out your wishes regarding your child’s estate and personal care.
Furthermore, the guardian must provide annual status reports updating the court on their performance in fulfilling their duties and the ward’s overall well-being. If the guardian has proved incompetent in caring for the ward, the court selects a new one.
When Does the Court Appoint a Guardian?
The court must establish that an individual cannot make decisions regarding their financial affairs, health care, or other necessities before appointing a guardian. Since the court considers minors already incapable of these decisions, they will select a guardian for them if one isn’t designated in the deceased parent’s Will.
Someone wishing to become a guardian must file a petition with the court to establish the individual’s inability to care for themselves or others. After a petition has been filed, incompetency hearings will occur where an attorney must produce testimonies, documentation, and other forms of evidence that prove beyond a preponderance of the evidence that the respondent is incapacitated somehow.
Once the evidence is heard, the court will decide whether to grant guardianship over the respondent.
Who Can File a Petition to Become a Guardian?
North Carolina law states that any person, state, or local human services agency can file a petition for guardianship. The court will consider the guardian you recommend in your Will for your children. Although the court doesn’t have to abide by this recommendation, they will consider that individual first before other options.
What if the Guardian is No Longer Needed?
If a Ward regains competency and feels they can manage their estate and own personal health care, they can file a motion for restoration to competency.
Following the initial filing, court proceedings will occur similar to incompetency hearings. Only this time, the court must prove that the ward can manage their affairs and communicate decisions regarding themselves to their family.
There is a chance the court might establish a limited guardianship where they give the ward back a portion of their rights and privileges rather than removing the guardianship entirely.
Once a child turns 18, they are legally an adult and considered capable of managing their personal care as well as their estate.
Why Should You Designate a Legal Guardian in North Carolina?
Although the court determines a guardian for incapacitated adults without a valid power of attorney document, you still have a right to establish a legal guardian for your children. Much like all estate planning matters, the main reason to name a guardian for your kids in your Will is that you never know what the future holds. One of the most responsible things you could consider is how your children’s assets, health care, or lives would be affected if you and your spouse both pass away.
Establishing who you recommend being your children’s guardian in your Will gives the court clear insight into your last wishes, and they might lean in your favor. This could prevent the court from appointing someone you don’t know, who won’t understand your wants, and consequently makes decisions regarding your children you wouldn’t have.