When a person no longer has the capacity to manage his or her financial affairs or make health care decisions, and the necessary estate planning documents are not in place, you may need to pursue an appointment of a guardian. In North Carolina, a guardianship appointment is handled through probate court. The probate court is charged with determining whether someone is incompetent. If the court finds that an individual is incompetent, then it would appoint a guardian.
The guardianship process can be complex and frustrating, especially when you are concerned about the health and well-being of a loved one. At the Brady Cobin Law Group, PLLC, our knowledgeable Raleigh guardianship attorneys are committed to helping individuals plan for the care they need. We’re proud to represent families who need thoughtful and caring advice about their futures and the futures of their loved ones.
Whether you need guidance about an emergency guardianship situation or need help planning for the future – we are here for you. Contact our Raleigh estate planning law firm today to schedule a consultation.
Types of Guardianship in North Carolina
There are three major types of guardianship in North Carolina: guardian of the estate, guardian of the person, and general guardian. These guardianships are laid out by the North Carolina Court system:
- Guardian of the estate. This type of guardian is appointed by a court to help manage a person’s finances and other business matters. The guardian of the estate has the power to take reasonable and prudent actions to manage a person’s estate. This includes paying debts, collecting money, and taking other actions necessary to properly manage someone’s financial affairs.
- Guardian of the person. This type of guardian manages the care and custody of a person. This includes making decisions about medical and psychological treatment, managing housing and comfort, and in some cases, handling issues such as education and employment. The duties will depend upon the specific circumstances and needs of the case. It’s important to note that a guardian of the person may not be involved with or manage the person’s finances.
- General guardian. A general guardian has the powers of both a guardian of the estate and a guardian of the person. They may handle a person’s finances and make important medical decisions. It is a position of great power and responsibility, and the powers of a general guardian may be limited by the court if needed.
What Are the Duties of a Guardian?
Being a guardian in North Carolina is a huge responsibility. A guardian owes many duties to the person he or she is watching over, including:
- Duty of care. In all cases, the guardian owes the person a duty of care. This means that the guardian must watch out for the person’s interests and take care of them as best they can.
- Property and investments. The guardian must manage property and investments prudently. This means managing the property and investments to pay for the person’s living expenses and other care. Investments must be put into interest-bearing accounts and other financial vehicles to provide the resources the person needs.
- Verification. The guardian must maintain records of all transactions involving the person’s care and upkeep. Medical records, checks, bank statements, and other documentation must be collected and maintained. This helps ensure that the person is getting the care they need and that the guardian is not taking advantage of the situation.
Who May Be a Guardian in NC?
In North Carolina, the guardian appointed will depend on the situation. A guardian may be:
- An adult individual
- A corporation (under certain circumstances)
- A disinterested public agent such as an agent of a mental health department
If the court clerk feels that a person may not lookout for the best interests of the ward (the person in need of a guardian), then the clerk may disqualify that person.
What Is the Guardianship Process?
In general, the guardianship process in North Carolina follows these steps:
- Petition. The person who seeks to be a guardian must first apply to the Superior Court in the county where the potential ward is located. This application will contain information about the applicant, the situation, and a basic inventory of the property and assets that may be involved.
- Oath. Guardians must take an oath to fulfill their duties to the best of their abilities and in accordance with the law. Given the tremendous power that a guardian wields, the oath is an important legal statement that the guardian will use the power he or she has for the benefit of the ward.
- Bond. The guardian must post a bond with the court. The amount will depend upon the nature of the guardianship and the complexity of the situation. In some cases, the court clerk may reduce the amount of the required bond. Whether or not the clerk will do this depends upon any agreements that the clerk has approved.
- Orders. The clerk will authorize the guardianship and generate documentation for the guardian.
- Letters. The clerk will give letters of guardianship to the guardian. These letters act as legal proof of guardianship and will allow the guardian to begin activities for the benefit of the ward.
How Can an Attorney Help with Guardianship?
The guardianship process in North Carolina can be complex and time-consuming. Our experienced Raleigh guardianship lawyers will walk you through the process and help you avoid common problems. These can include problems with paperwork, conflicts between family members, and unclear wishes from the person in need of a guardian. (In many cases, by the time a guardian is needed, it’s hard for the person in need to make their thoughts known.)
More importantly, our attorneys can help you ensure that the proper paperwork and processes for guardianship are in place in advance. This helps to head-off future problems. It makes the party’s wishes clear and lays out detailed guidelines for the guardian.
Our Raleigh Guardianship Attorneys Have Extensive Experience Helping People Like You
At the Brady Cobin Law Group, we’ve handled guardianship and estate cases throughout North Carolina. If you’re going through the guardianship process, or need help planning for the future, our law firm is here for you.
Call us or contact us online today to speak with a compassionate Raleigh guardianship lawyer.
Dan Brady & staff are great! Excellent and professional at all times. Would recommend Brady/Cobin to anyone looking for Estate Planning services!