What is a legal guardian in North Carolina? A judge appoints a legal guardian to manage the affairs of an adult who has been declared incompetent. Loved ones concerned about another’s well-being who want to ensure proper care may initiate the legal proceedings. The judge will consider many factors, including the adult’s best interests. Let’s take a closer look at a legal guardian definition and how the process plays out in North Carolina.  

Legal Guardian Definition in North Carolina?

First off, let’s define a legal guardian. A judge appoints a legal guardian for an adult when a judge declares a person incompetent. Incompetence is a legal term meaning that a person lacks sufficient capacity to:

  • Manage their own affairs OR
  • Make or communicate important decisions concerning their person, family, or property.” (1)

Anyone may face incompetence at any age. Incompetence can come from:

  • Mental disorders
  • Emergency medical events
  • Emergency accidents causing catastrophic injury
  • Old age
  • Physical inability to care for one’s self

You may also choose someone to care for you by planning ahead with a power of attorney document to name someone as your future caregiver. However, a legal guardian is someone a judge appoints and oversees as a caregiver or protector of the incompetent person.

What If My Loved One Needs a Guardian?

There are legal processes loved ones must go through to ask the judge to appoint a guardian. 

The first step is filing a “PETITION FOR ADJUDICATION OF INCOMPETENCE AND APPLICATION FOR APPOINTMENT OF GUARDIAN OR LIMITED GUARDIAN AND MOTION FOR APPOINTMENT OF INTERIM GUARDIAN.” The court must declare a person legally incompetent to manage their own affairs before appointing a guardian.

During an incompetency hearing, the court will appoint your loved one with a Guardian Ad Litem to oversee their interests in the proceeding. The Guardian ad Litem is a bit like the person’s attorney in that they want to find what is in the person’s best interests. They may call witnesses for the person, such as doctors, family members, neighbors, counselors, etc. They may also pull medical and other records to decide what is best.

The person accused of incompetence may also hire their own attorney to defend their competence. As the petitioner, you may also hire an attorney to represent your views about the incompetence of your loved one.

Any interested party, such as a family member, friend, or legal representative, may file the petition for incompetence and apply as a temporary or permanent guardian. The petition must include specific information about the proposed ward and the petitioner and a statement of why guardianship is necessary.

After filing the petition, the court will set a hearing date and notify all interested parties. The person alleged incompetent has the right to attend the hearing and present evidence about their competence.

At the hearing, the court will decide whether or not to appoint a legal guardian for the person. If they find the person incompetent, they will determine what type of guardianship is necessary and who to appoint as legal guardian.

Guardianship Types

Limited Guardianship:

For example, if you need to rest most days but are mentally sharp, the court may appoint a limited guardian. Your appointed guardian could use funds from your estate to hire help to make dinner for you each day. A limited guardianship is a good solution if you only need help in a few areas.

Guardian of the Person:

A guardian of the person cares for the personal needs of a ward. Their authority includes making decisions about where the Ward will live, healthcare, daily help with personal care needs, etc. Some examples of the duties the court gives you responsibility over include:

  • Responsible for the care, comfort, and maintenance of the Ward’s person
  • Charged with taking reasonable care of the Ward’s personal effects, i.e. clothes, furniture
  • Arranges for the Ward’s training, education, employment, rehabilitation, or habilitation
  • Establishes where the ward will reside (in the least restrictive environment)
  • Gives consent or approval for medical, psychological, or other professional care, counsel, or treatment for the Ward in their best interest
  • Allows the Ward to exercise rights that are within their comprehension
  • Support the Ward’s right to participate in all decisions affecting them 
  • Petitions for restoration of competency if it becomes a viable option
  • Cannot consent to sterilization unless by order of the clerk in cases of medical necessity (1)

Guardian of the Estate:

The court could appoint another limited arrangement where a guardian is only in charge of your financial affairs (your estate). If you get easily confused when handling complex matters but do fine just caring for yourself, the court may let you take care of your day-to-day issues such as dinner and home care while your guardian manages your finances.

A guardian of the estate must:

  • Manage the Ward’s property, estate, and business affairs
  • Must post an insurance bond before receiving the Ward’s estate
  • Takes control of the Ward’s estate (both real & personal property) for the Ward’s use
  • Administers the estate prudently in the Ward’s best interest
  • Pays the Ward’s debts, property insurance, income taxes, property taxes, and other taxes owed by the Ward from the Ward ‘s estate. (1)
  • See many more specific duties at N.C.G.S. 35A-1251 

General Guardian of the Person and Estate:

A general Guardianship manages the needs of the person and the estate. Full guardianship covers your daily care needs and the financial management of your estate.

Split Guardianship:

Sometimes the court will split a guardianship so that one person cares for your estate while another is in charge of managing your personal needs. The two guardians must work together to care for your needs and your estate’s management.

Other Limited Guardianships:

Other limited guardianship arrangements exist, except with less authority over the ward. The court limits what these guardians make decisions about:

  • A Limited Guardian of the Person
  • Limited Guardian of the Estate
  • Limited General Guardian

Guardianship Responsibilities and Duties In North Carolina

The duties and responsibilities of legal guardians can be found in the North Carolina General Statutes. The level of activity you must undertake for the court as a guardian can look overwhelming. That’s why many court-ordered guardians need legal help to properly administer the estate and funds of the guardian for their own interests.

A legal guardian must:

  • Always act in the best interest of the ward.
  • Ensure that the ward has enough food, clothing, shelter, medical care, and supervision.
  • Keep track of all the money that is spent on the ward.
  • Keep accurate records of money spent on the ward.
  • Ensure that the ward is not harmed in any way, physically or emotionally.
  • Ensure the ward’s rights are not violated in any way.
  • Keep the court informed about the status of the ward
  • File a yearly report with the court.
  • Get permission from the court before spending the ward’s money.
  • Ensure they take care of the ward’s property and do not sell without the court’s permission.

If you are interested in becoming a legal guardian in North Carolina, or if you need to find a legal guardian for someone you know, the best place to start is by talking to an attorney. An experienced attorney can answer all of your questions and help you through the process.

We Can Help

As Guardianship Attorneys, we can help you file incompetence petitions to declare a loved one in need of legal guardianship. In addition, we can stand up for you at any hearings you may face and also support you while you file administrative documents with the court. We understand how these legal proceedings work and can help you and your loved ones work out the best outcome for your unique situation.

And finally, talk with us about your legal needs and find out how we can help you going forward. Contact us today to schedule a consultation.