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What is Guardianship in North Carolina?

By Amy Edwards

What is a Guardian?

A guardian is a person, state agency or even a corporation, who is appointed by the court to manage someone’s affairs when they are unable to do so for themselves. When an adult doesn’t have the ability to make decisions for himself or herself because of advanced age, mental illness, injury, disease, or other condition, the court will have a trial to determine whether he or she is competent. If the court rules a person is incompetent, the court will appoint a guardian. Good estate planning can minimize the burdens and the cost of this process. The incompetent person becomes a “ward” of the guardian, who is given the legal right to make decisions for the ward. Guardians are legally obligated to act only in the best interest of the ward. In North Carolina, there are mainly two types of guardianship for adults: guardianship of the person and guardianship of the estate. If a person has both types of guardianship, he or she has the legal title of “general guardian.” There are variations of these laws when an adult is appointed as guardian of a minor.

Guardians of the Person

A person who is awarded guardian of the person (GOP) is legally obligated to make sure the ward is taken care of, and is entitled to physical custody of that person. GOPs have a legal duty to provide “for the ward’s care, comfort, and maintenance, and shall, as appropriate to the ward’s needs, arrange for the ward’s training, education, employment, rehabilitation or habilitation.” GOPs also have the right and obligation to consent to “receive medical, legal, psychological, or other professional care, counsel, treatment, or service.” NC Gen. Stat. 35A-1241.

Guardians of the Estate

A person who is appointed as guardian of the estate (GOE) is legally obligated to make sure the assets, incomes and general finances of their ward are protected and managed properly. GOEs have very broad authority to do everything from paying bills to signing contracts and insuring assets. State law specifically mentions the right to continue the operation of farming and businesses. GOEs are usually required by law to file an inventory of assets followed by annual accountings of the assets and income.

Guardianship of Minors

For minors, GOPs are quite rare because a parent or other adult almost always has custody instead of guardianship. The court may appoint the Director of a county department of social services (DSS) as the acting GOP if the child needs DSS services and he or she has no natural guardian, or the minor has been abandoned. The Director is relieved of this duty once the court appoints a permanent GOP, grants custody to an adult, or the child is adopted. However, the court requires a GOE to be appointed for all minors with income or an estate, including cases where the child lives with parents. Examples of incomes and estates include life insurance proceeds, social security death benefits, or settlements in personal injury cases. Even when both parents are As with GOEs for adults, the GOE for a minor is required to file annual accountings for the minor’s assets and income.

Guardians Ad Litem

A GAL is different from the guardians explained above because they can be appointed by the court when minors or people with limited capacity are faced with a lawsuit. GALs are appointed for minors, unborn children whose rights are at issue, and for adults who have a limited ability to meet the challenges of being a party to a lawsuit. An adult’s limited abilities are caused by any number of reasons, such as advanced age or illness for example.

Amy A. Edwards is a family law attorney in Greenville, NC. She is certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of July 2015. www.GreenvilleLaw.us © 2015.

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