Guardian of the Person NC
There are several reasons a person may be called upon to assume guardianship of a loved one – catastrophic injury, debilitating illness, birth defect, or the infirmity of age. When a legal guardianship is established, the guardian has a wide span of control over the life of the “ward” he or she has agreed to protect and assist.
North Carolina’s requirements for establishing guardianship can be complex and time-consuming. They include petitioning the local probate court and establishing the need for protection, the prospective guardian’s qualifications and the extent of the ward’s estate, which the guardian will manage and control.
The guardianship attorneys of the Brady Cobin Law Group, PLLC, can assist you and your family with guardianship-of-the-person needs in Cary, NC. Much of the necessary work comes down to getting paperwork in order and appearing before a representative of the local clerk of court. Everyone involved needs to understand what guardianship of the person means in North Carolina and the duties of a guardian of the person. Our attorneys are committed to helping individuals plan for the care they may need in the future or the care they need to provide a loved one today.
Contact our Raleigh estate planning law firm today to schedule a consultation about a guardianship. We are here for you.
What are the Duties of a Guardian of the Person?
There are three major types of guardianship under North Carolina law:
- guardian of the person
- guardian of the estate
- general guardian.
A guardian of the person manages the custody and care of an individual, who is referred to in legal terms as the ward. A guardian of the estate manages an individual’s finances and other business matters.
The court may appoint one individual to act as both guardian of the person and guardian of the estate. This is referred to in the law as a plenary guardian or general guardian.
The guardian of the person looks out for his or her ward’s “care, comfort and maintenance.” Unless the clerk of court provides authority for fewer duties through a limited guardianship, the authority granted to a guardian of the person includes making decisions.
The Guardian of the person includes making decisions to:
- A place to live, with a preference for a North Carolina location
- Education and/or other training
- Medical care, including vocational and occupational therapy and psychological counseling
- Legal counsel and other professional services
- Everyday needs, including care and upkeep of clothing, furniture, vehicles and other personal effects.
The housing of a person in need of guardianship is a primary concern for the guardian of the person. For a guardianship established in North Carolina, the preference is for the ward to remain in North Carolina if the choices in and outside of the state are substantially equal.
When selecting housing, the guardian is required to give preference to places that are not treatment facilities. If a treatment facility is required, the law requires the guardian to give preference to community-based treatment facilities, such as group homes or nursing homes, over treatment facilities that are not community-based.
The specific duties a guardian of the person assumes will depend upon the specific circumstances and needs of the individual who needs care. North Carolina law provides that, in addition to duties outlined above, a guardian of the person may give any other consent or approval on the ward’s behalf that may be required or 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 of the person from being sued for injury or losses incurred by his or her ward because of decisions the guardian made in good faith. This includes authorizing medical treatment or surgery for the ward.
A guardian of the person is entitled to be reimbursed out of the ward’s estate for reasonable expenses incurred while assisting the ward. It’s important to reiterate that a guardian of the person does not have the authority to manage the finances of the ward. The finances are managed by the person appointed as a guardian of the estate or someone in a general guardianship role.
How Is a Guardian of the Person Chosen?
A guardian of the person must be capable of a guardian’s duties and of legal age (18 years old). The court decides if a person is fit to be a guardian, so a potential guardian should not have a substantial criminal record or other derogatory issues in their background.
Typically, a guardian of a person is someone who is already close to the disabled individual, such as a spouse, adult child, parent, another family member or a long-time companion or friend.
However, the guardianship may be granted 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.
When possible, the court will follow the expressed desires of the ward. But, by the time guardianship is needed, the ward may not be able to respond to questions or adequately express his or her desires. This is why many people include naming a potential guardian in estate planning legal work prepared while they are healthy and of sound mind.
Without legal documentation of a prior guardianship decision, the court is charged with determining whether someone is incompetent. If the court finds that an individual is incompetent, then it can appoint a guardian, who is typically someone who has petitioned to assume the guardianship.
The guardian of the person 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. The guardian must post a bond with the court. The court will set the amount according to the nature of the guardianship and the complexity of the situation.
Once the guardianship is approved, the clerk of court will issue letters of guardianship to the guardian. These serve as legal proof of the guardianship and authorization of the guardian to act on behalf of the ward.
All public guardians are required to file status reports with the court, and the clerk of the court may require these reports from any guardian.
How We Can Assist the Guardian of the Person and Their Ward
In many of the guardianship cases, we assist North Carolina families with, the individual in need of protection needs someone to begin acting on their behalf as soon as possible. Our attorneys are able to assist with completing the paperwork and submitting petitions for guardianship in an expedient manner because we’ve handled guardianship cases throughout North Carolina for several decades. We can also help to have the clerk of court establish the lowest bond possible for the guardian.
In some situations, there are disputes among family members about the need for legal guardianship and/or who should or shouldn’t serve as guardian of the person. Our years of experience in estate planning and elder law equip us to counsel and work with family members to reach agreements that benefit the individual in need.
Our preference is to work with you today as part of your overall estate planning to help you and your loved ones prepare for the future.
A November 2018 report by the U.S. Senate’s Special Committee on Aging noted the age of the Baby Boom generation and estimated that there are approximately 1.3 million adult guardianship cases established in the United States today.
We can help make sure this transition point in your life is well-considered and in keeping with your stated wishes if and when a guardian is needed. We can walk you through the prospects of you needing assistance in your golden years.
If you have an underage child who will need continued care as an adult, we can work today to make sure there are no legal questions about your role in your child’s life in the years to come.
Let us help you head-off future problems, make your wishes clear and layout detailed guidelines for your chosen guardian or continued legal guardianship of your child or other loved one.
Contact Our Cary, NC, Guardianship Attorneys
If you need to establish guardianship for a loved one as soon as possible or would like help preparing for the future, the Brady Cobin Law Group is here for you. Our experienced and compassionate attorneys have handled emergency guardian of the person cases and established guardianship agreements as part of estate planning for families throughout North Carolina.
The sooner you take steps toward planning for your family’s future, the better off you’ll be. Call us or contact us online today to speak with a guardian of the person lawyer in Cary, NC.