What is Guardianship?

0 Comment(s) | Posted | by Cecil Harvell |

Guardianship is a legal relationship between a person who is declared legally incompetent and a third party appointed by the Court to act as a fiduciary for that person.  This fiduciary is, of course, referred to as the Guardian, while North Carolina law refers to the incompetent person as the Ward.  While Guardianship seeks to preserve, as much as possible, the ability of the Ward to exercise his or her rights, the Guardian acts in a position of trust and confidence to make informed decisions on behalf of the Ward when he or she cannot do so.  

A Guardianship is only created following the judicial determination, made by the Clerk of Court that the person subject to the Guardianship is legally incompetent based on the existence of one of the conditions listed or contemplated by statute.  The reach of statute is fairly broad, as it may include individuals who have been declared incompetent due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, senility, habitual use of drugs or alcohol, disease, injury, or other similar causes and conditions.  This list is not exhaustive, and there are many types of conditions, disorders, and diseases, both mental and physical, that may support a judicial declaration of Incompetence and the creation of a Guardianship.  We at Harvell and Collins have handled cases arising out of a number of different conditions.  However, the most common situation that leads to the establishment of a Guardianship, in our practice, is the advanced onset of Alzheimer's disease or other generalized forms of dementia in the elderly, especially in those individuals who live alone.

Following a declaration of Incompetence, the next step is to appoint a Guardian.  There are three different >types= of Guardianship provided by North Carolina law.  The first is Guardianship of the Estate.  In a Guardianship of the Estate, the Guardian is charged solely with managing the Ward's property, finances, and business affairs, all of which are collectively referred to as the Estate for purposes of the Guardianship.  It should be noted that this Estate has nothing to do with the estate that is opened to probate the will of a decedent.  The next type of Guardianship is called Guardianship of the Person.  A Guardian of the Person is charged with performing duties relating to the care, custody, and control of the Ward.  This includes living decisions and health care decisions.  Finally, a General Guardianship covers decisions and powers relating to property and finances (the Estate) as well as to living and health care issues (the Person).  General Guardianship is very common as it allows the Guardian broad powers over virtually every aspect of the Ward's daily life.

If it is determined that a Guardian of the Estate is required to manage the Ward's property and finances, then the Guardian may be required to post a bond with the Court to ensure the faithful performance of her duties on behalf of the Ward.  Additionally, the Court may require the Guardian of the Estate to file periodic accountings with the Court to demonstrate the Guardian has taken financial actions taken which are beneficial to the Ward.  

It is possible, in some limited circumstances, that the Ward may possess the ability to manage some aspects of his or her daily living or finances.  In such cases, the Clerk may order a limited Guardianship, setting forth the specific powers and duties under the statute that the Guardian may exercise for the benefit of the Ward.  This reflects one of the main purposes of Guardianship law, which is to preserve the Ward's ability to exercise his rights to the fullest extent possible.  The powers and duties set forth by the Guardianship statute is a rather exhaustive list, and depending on the type of mental or physical condition affecting the Ward, it may not be necessary to award all of those broad powers to the Guardian.  

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