By Stephanie R. Poston, Attorney
I’ve often had a client tell me during our initial consultation that they are the guardian for someone else, yet when I ask for a copy of their Letters of Guardianship, they inevitably tell me that they don’t know what I’m talking about. So, what they meant was that they are someone’s caretaker, not legal guardian.
Rather, a guardianship involves obtaining legal authority to act on behalf of another person and must be obtained through the court process. In North Carolina, a legal guardianship involves two separate court proceedings.
The first step is to file a special proceeding asking the clerk to determine that the person needing a guardian (referred to as the proposed ward) is incompetent and that a guardian needs to be appointed. The second step involves filing an estate proceeding asking the clerk to appoint a particular person as the guardian and opening the guardianship estate.
The special proceeding consists of filing a Petition for Adjudication of Incompetence and Application for Appointment of Guardian. The person who files the petition is called the petitioner and is often the person who is seeking to become the guardian but may be another interested party. The proposed ward is called the respondent.
Once the incompetency petition is filed, the court will appoint a guardian ad litem to represent the respondent unless the respondent retains their own counsel. The guardian ad litem will then personally visit the respondent to determine the respondent’s wishes regarding the incompetency proceeding and the proposed guardianship. The guardian ad litem will then report to the clerk the respondent’s express wishes and may make recommendations to the clerk regarding what the guardian ad litem determines to be in the best interests of the respondent. During this time period, the court or petition may request that a multidisciplinary evaluation of the respondent be performed.
After the multidisciplinary evaluation has been performed and the clerk has received the guardian ad litem’s report, the clerk will hold a hearing on the petition. Both the petitioner and respondent are entitled to present testimony and other evidence supporting or opposing the determination incompetence and the nature and extent of the incompetence. If the clerk, or jury, finds that the respondent is incompetent, then an order will be issued adjudicating the respondent incompetent. If not, then the proceeding is dismissed.
Upon entry of the adjudication of incompetence order, the proposed guardian will then file an application for letters of guardianship in an estate proceeding stating why they should be appointed guardian and the extent of the guardianship. There are two types of guardians – guardians of the estate and guardians of the person. A guardian of the estate manages the financial assets of the ward, while a guardian of the person determines where the ward will live, help with day-to-day activities, make healthcare decisions for the ward, etc. A general guardian is both the guardian of the estate and the guardian of the person.
Once the guardianship petition is filed, there will be another hearing for the clerk to decide whether the petitioner is qualified to be the guardian. If the clerk determines that the petitioner is qualified, the clerk will enter an order setting forth the nature of the guardianship and the powers and duties of the guardian and will issue letters of guardianship to the guardian. If a limited guardianship is ordered, the ward may retain certain legal rights and privileges, such as the right to enter into certain contracts, or handle small amounts of money, or make certain medical decisions.
After the guardian has been appointed, the guardian has certain responsibilities with respect to the guardianship estate. First, the guardian will be required to obtain a bond based on the value of the assets held by the ward. The guardian will also be required to file an inventory in the guardianship within 90 days from the date of qualification detailing the assets of the estate and showing their value. In addition, the guardian will be required to file annual accountings for the entire time that the guardianship is in place. The guardian may also need to comply with other requirements if they decide to take certain actions, including selling real estate, making reimbursements, making gifts, etc. You may click on the following link to view the brochure produced by the court that outlines the responsibilities of a guardian – Responsibilities of Guardians in North Carolina.
As you can see, obtaining a legal guardianship is not simply as easy as acting for someone when they are unable to act for themselves, but rather requires multiple court proceedings. Further, obtaining a legal guardianship includes ongoing responsibilities for the guardian including annual reporting to the clerk. Therefore, it is always best practice to consult with an experienced guardianship attorney to determine whether a guardianship is necessary or whether other options may be available.