Guardianships in North Carolina provide legal protection for minors who are orphans, have been abandoned, and have no natural guardian care for them or manage their property.
Guardians can also be appointed for adults who have any condition that prevents them from caring for themselves, making decisions, or managing their property. Some common cases where a guardianship may be necessary are a debilitating car accident, physical illness, or psychological disorders. General guardians provide care for the individual and also manage their property.
Guardianship of a child is not the same as child custody. The legal standards and procedures are very different. The authorities and responsibilities of a guardian are very different from from those of a person who has legal or physical custody of a child.
Types of Guardianships
There are generally three types of guardianships: guardianship of the person for an individual, and guardianship of the estate for property. A general guardian is responsible for both the care of the person and their property. A guardianship can be created when a person is unable to care for themselves, or even when they are unusually prone to fraud or external influence.
Guardians are appointed by the court when a person lacks sufficient capacity to make or communicate important decisions concerning his or her person, family, or property due to a specific mental or physical impairment. Guardians are also appointed when a person lacks sufficient capacity to manage his or her personal or financial affairs.
An individual’s capacity must be determined in relation to his or her ability to do a specific act or perform a specific function. A person may have the capacity to do X (manage their daily activities), but may lack the capacity to do Y (manage their finances).
Guardianship Of A Person
Guardianship of a person in North Carolina places that person, known as the ward, under the supervision of a guardian. The guardian is typically a family friend, family member, or a court-appointed fiduciary.
Guardianships protect the individual (the ward), but keep in mind that they should only be used in certain situations because they significantly limit or remove the rights of the ward. Areas in which the guardian may exercise decision-making authority include:
- Estate planning or end-of-life directives
- Real estate transactions
- Automobile or other transactions
- Place of residence
- Filing lawsuits
- Providing consent for medical treatment
Guardianship of a minor is appropriate when a child has no surviving parent, or is abandoned, or a parent is unable to care for or act on behalf of their child.
Unlike an adoption, with guardianships the parent may still remain responsible for supporting the child financially, and the parent does not necessarily give up parental rights. Parental approval is generally sought prior to any proceeding where the parent is unable to care for their child.
Guardianship Of An Estate
Guardianship of the estate may be appropriate when a person is unable to manage their financial affairs. The guardian of the estate will manage the property for the ward, and make decisions in their best interest.
The guardian assumes a number of responsibilities:
- Creating an inventory of estate assets, values and locations, and reporting this inventory to the court
- Protecting property from loss to the best of their ability
- Obtaining court approval prior to the sale of assets
- Managing income generated by the protected assets
- Handling general business (payables and receivables) of the property
- Reporting to the court on a regular basis
Often, as a part of an estate plan, the guardian of the estate will be the same as the guardian of the child, although there are some cases where they may be different.
Sometimes one person is a good care-giver and the best choice as guardian of the person, but not a good money manager and not the best choice as guardian of the estate.
There are a number of advance planning tools and alternatives to guardianship:
- Durable power of attorney
- Health care power of attorney
- Standby guardians
A standby guardian may be appointed by the court or designated by a parent. A standby guardian becomes the guardian of the person or general guardian of a child upon the death or incapacity of the child’s parent or guardian.
Designation of a standby guardian is appropriate when single parent suffers from a progressive chronic or irreversible fatal illness or chronic and substantial inability (due to a mental or other impairment) to understand the nature and consequences of decisions concerning the care of one’s minor child and lacks the capacity to make those decisions.
Experience On Your Side
There are many options available. Choosing the right one is important. Setting up a guardianship in North Carolina properly is a complex task, and one that requires an experienced attorney on your side.
Bobby Mills has over 30 years experience in adoption and related law in North Carolina. Call us today at 919-306-2899 to schedule a consultation.