General Guardianship
If a person becomes incapable of managing their personal well-being and/or their financial affairs, or an underage child loses their parents, the courts can appoint a person or agency to act as a guardian.
A general guardian manages the individual’s finances and makes important decisions about their daily living arrangements and medical care. In some cases, a guardian of the person is appointed to manage the care and custody of the person and a guardian of the estate manages the person’s finances and other business matters. With authority over both, a general guardian has great power and responsibility for the individual’s life.
The estate planning attorneys of Brady Cobin Law Group work with individuals and families to attain appointment of general guardianships in NC for adults and children in need of assistance and as part of forward-looking estate planning.
Planned and Emergency Guardian Appointments
Typically, a family pursues appointment of a general guardian on behalf of a loved one who cannot manage his or her affairs. Often, someone must suddenly step up to assume the responsibility of general guardian after witnessing the individual’s mental or physical decline due to illness or after a traumatic accident. A general guardianship is an ongoing role with specific legal responsibilities.
As part of estate planning, an adult can ask someone they trust to accept this responsibility if and when it becomes necessary. This gives the potential appointee the opportunity to understand the guardian’s duties.
The knowledgeable Raleigh guardianship attorneys of the Brady Cobin Law Group, PLLC, can help you obtain appointment of a general guardian now if your family faces an emergency or help you prepare for future needs. The complexity of obtaining guardianship can prove frustrating for petitioners worried about a loved one’s immediate well-being. We are committed to helping Raleigh area residents ensure the availability of care for their loved ones or themselves and can guide you through the process of empowering a general guardian.
What is General Guardianship?
An appointed guardian who has a general guardianship, or “plenary guardianship,” may have total responsibility for the affairs of an individual who has been declared incompetent by the court or for a minor whose parents cannot care for him or her.
A general guardian manages the property, estate and business affairs of their ward as well as the custody and care, including housing and medical care.
What Are the Duties of a General Guardian?
The court’s order appointing a general guardian will define their duties, but the guardian’s responsibilities can encompass:
- Choosing where the ward lives, such as group homes or nursing homes
- Seeing to the ward’s needs, including care and upkeep, clothing, furniture, housekeeping (if in a private residence) and transportation
- Medical care, including vocational and occupational therapy and psychological counseling
- Education and/or other training, if needed
- Employment, if applicable
- All assets of the estate
- Spending on the behalf of the ward or their estate, including paying taxes
- Borrowing, investing, insuring
- Any business or farming operation the ward was engaged in that should be continued
- Contractual obligations and legal actions required for the good of the ward or estate
- Employing attorneys, investment advisors, accountants and other professionals to advise or assist in the performance of his or her duties as guardian.
The specific duties that a general guardian assumes will depend upon the circumstances and needs of the individual who needs care. In addition to duties outlined above, a guardian may give any other consent that may be required in the ward’s best interest. The guardian may petition the clerk of court for approval if necessary to overcome objections voiced by the ward or others with standing in the case.
North Carolina law protects a guardian from being sued for injury or losses incurred by his or her ward because of decisions the guardian makes in good faith. This includes authorizing surgery or other medical treatment for the ward.
The guardian is responsible for standard bookkeeping and accounting of the estate’s assets and liabilities. He or she must regularly report to the courts on the status of the estate and how money has been spent to cover the ward’s expenses. A guardian must also appear for any of the disabled person’s legal proceedings.
A guardian is entitled to be reimbursed out of the ward’s estate for reasonable expenses incurred while performing the duties of the guardianship.
How is a General Guardian Chosen?
Typically, a guardian is someone who has been close to the disabled individual, such as a spouse, adult child, parent, relative or a long-time friend or companion. The individual must be capable of a guardian’s duties and of legal age. When the person being protected has a large or complex estate, a potential guardian should have some demonstrated financial competency.
The court will determine whether a person is qualified to be a guardian. A potential guardian should not have a criminal record or other negative issues in their background. If the court finds that a proposed guardian is not qualified or capable of handling the duties, it can appoint someone else of its choosing.
When appropriate, guardianship may be assigned to:
- A disinterested public agent, such as a county Department of Social Services or an attorney.
- A corporation, such as a bank, trust department, for-profit entity or nonprofit entity.
If the person in need of protection expresses a preference for who should serve as their guardian, the court will seek to appoint that person or entity. Unfortunately, when guardianship becomes necessary for an adult, the individual may be unable to adequately express his or her desires. This is why many people name a potential guardian as part of estate planning while they are healthy and of sound mind.
A potential guardian must apply to the Clerk of Superior Court of the county where the individual to be protected resides. The application requires a preliminary inventory of all assets and liabilities of the ward. Therefore, the applicant will need to have a general knowledge of the ward’s real estate, financial holdings, motor vehicles and other personal property and their estimated value and an estimate of the ward’s debts to complete the application.
The person appointed to a guardianship must take an oath to fulfill the duties of the position to the best of his or her abilities and in accordance with the law and must post a bond with the court. The court will set the bond according to the nature and complexity of the guardianship.
Once approved, the clerk of court will issue letters of guardianship, which serve as legal proof and authorization of the guardian to act on behalf of the ward.
A guardian is required to provide a full accounting of the status of the ward’s estate within three months of being appointed and then annually thereafter.
A general guardian who needs to resign would petition the Clerk of Superior Court for an order authorizing the resignation and would be required to provide a full accounting of the status of the estate. Upon the death of a guardian, the clerk will appoint a successor guardian following the same procedure as for the initial appointment.
The clerk may remove a guardian who has mismanaged the estate or wasted the ward’s money, violated a fiduciary duty or failed to provide care for the ward. The clerk must remove a guardian who has been convicted of a felony or judged incompetent or if the clerk otherwise finds the guardian to be unsuitable to continue in the role.
How We Can Assist the General Guardian
In many guardianship cases we handle, the need for someone to assume the role of guardian is immediate. Because we’ve helped families establish guardianships for many years, our knowledgeable attorneys can move quickly and efficiently to help compile the paperwork and submit petitions to establish a general guardianship in North Carolina.
In some cases, the need for guardianship or who should serve as guardian is disputed. Our years of experience in estate planning and elder law helps us to work with family members and seek to resolve disagreements in the best interests of the individual in need of care.
Our preference is to help people plan for the prospect that they will one day need a guardian’s assistance. We can help make sure your affairs are entrusted to someone you would want to make decisions about this stage of your life. We can walk both you and your intended guardian through what is required.
If you have an underage child who will need care as an adult, we can work to make sure there are no legal questions about your continued role in your child’s life.
Documenting your desires today ensures they will be carried out as you intended when the need arises.
Contact Our NC Guardianship Attorneys
The attorneys at Brady Cobin Law Group can help you prepare for your family’s future needs today. Our compassionate attorneys can work with you and your family to create a plan to ensure that someone is ready to serve as guardian of your welfare should you become incapacitated. We can also assist with an emergency need to appoint a general guardian. We have established guardianship agreements for families throughout North Carolina as part of estate planning and as urgent needs arose.
We can help you ensure that your loved ones’ future is protected. Call us at (919) 782-3500 in Raleigh or Wake Forest or contact us online to speak with an experienced North Carolina guardianship attorney.