GUARDIANSHIP

In North Carolina, guardianship refers to a legal relationship in which a court appoints an individual (the “guardian”) to make decisions on behalf of another person (the “ward”) who is unable to care for themselves or manage their own affairs due to factors like age, disability, or incapacity. Guardianship is intended to protect individuals who cannot make informed decisions for their own well-being or property.

There are two main types of guardianship in North Carolina:

1. Guardianship of the Person:

This type of guardianship is established when a person is unable to care for their own personal needs, such as food, shelter, and medical care, due to incapacity. The guardian is responsible for ensuring the ward’s basic needs are met and may make decisions about the ward’s living arrangements, healthcare, and personal welfare.

Examples:
Appointing a guardian for an elderly person with dementia or a minor child whose parents are unable to care for them.
Powers of the Guardian: The guardian can make decisions related to the ward’s:
Health care (e.g., consent to medical treatments)
Education (if the ward is a minor)
Residence and living arrangements
Social and recreational activities
General well-being and protection
2. Guardianship of the Estate:

This type of guardianship applies when a person is unable to manage their financial affairs, either due to age, mental or physical incapacity, or disability. The guardian in this case is responsible for managing the ward’s assets, paying bills, and ensuring their financial security.

Examples:
Appointing a guardian for a person with severe cognitive impairment or a minor who has inherited property or assets.
Powers of the Guardian: The guardian can manage the ward’s financial affairs, including:
Paying bills and debts
Managing income and investments
Making financial decisions in the ward’s best interest
Guardianship for Minor Children:

In cases where a minor’s parents are unable to care for them (due to death, incapacity, or other reasons), a guardian may be appointed by the court to make decisions for the child. This could involve both the personal care of the minor and managing their estate (if applicable).

Guardianship can be temporary or permanent depending on the circumstances and the child’s needs.
Grandparents, family members, or others may be appointed as guardians, but the court ensures that the child’s best interests are prioritized.
Procedure for Establishing Guardianship:

Petition: A person must file a petition with the North Carolina court, asking for the appointment of a guardian. The petition typically includes medical or other documentation supporting the need for guardianship.
Court Hearing: The court will hold a hearing to determine whether the person in question is truly incapacitated and in need of a guardian. The ward has the right to attend and participate in the hearing.
Appointment: If the court finds that guardianship is necessary, it will appoint a suitable individual (or individuals) to serve as the guardian.
Oversight: The court will maintain oversight of the guardianship, requiring periodic reports from the guardian to ensure the well-being of the ward.
Temporary Guardianship:

In some cases, a temporary guardian may be appointed in emergencies. This temporary arrangement is usually meant to last only until a permanent guardian is appointed or the situation is resolved.

Rights of the Ward:

Even though a guardian is appointed, the ward still has certain rights. Guardianship should be as limited as necessary to ensure the well-being of the individual. For example, a guardian may not have the right to make all decisions on behalf of the ward, especially if the ward can still make certain decisions independently.

Termination of Guardianship:

Guardianship may be terminated when the ward’s capacity improves (for example, if a person recovers from an illness or injury), if the ward reaches adulthood (in the case of a minor), or if the guardian is no longer able or willing to fulfill their responsibilities. The court may also terminate guardianship if it finds that it is no longer in the ward’s best interests.

Responsibilities of a Guardian:

Guardians have a legal duty to act in the best interests of the ward and to avoid conflicts of interest. They must act prudently, keep accurate records, and report regularly to the court. Guardianship is a serious responsibility and, if not properly managed, can result in legal consequences for the guardian.

If you are considering seeking guardianship in North Carolina or have been appointed as a guardian, it is advisable to consult with an attorney to ensure that you understand your legal rights, responsibilities, and the court process.