Guardianships
Guardianships are
established for people who
need representatives to
oversee their personal
affairs or finances. A
person incapacitated by age
or health problems may come
under the care of a legal
guardian. Such a person
becomes a “ward” of the
“guardian”. In North
Carolina, this relationship
is established by order of
the clerk of the superior
court of the county in which
the incapacitated person
resides. A person may
nominate in advance another
individual to serve as a
guardian, and that
individual likely will be
appointed by the clerk
absent a clear and
convincing showing that the
nominee is unsuitable for
the job.
In
North Carolina, there are
three types of guardians: a
guardian of the estate or
property, a guardian of the
person, and a general
guardian (which is simply a
combination personal and
property guardian). A
guardian may be appointed
for a minor (most often when
the child has property
issues, such as receipt of a
large judgment or an
inheritance), as well as for
an adult. In many states
the guardian of the estate
is called a conservator.
The
process for the appointment
of a guardian can be
cumbersome, intrusive,
emotionally trying and
expensive. Often the
process could have been
avoided with a properly
drafted General Power of
Attorney and a Health Care
Power of Attorney.
Nevertheless, appointment
often becomes necessary in
the course of undertaking
planning activities with
respect to an incompetent
person’s estate, because it
will usually be difficult or
impossible to make any
strategic decision with
respect to the incapacitated
individual’s property
without a properly
authorized individual.
Recently, North Carolina law
was changed to allow the
appointment of a guardian
with limited powers and to
allow the ward to retain
certain rights. This is an
improvement over older law
that allowed for only an
“either-or” determination:
either the ward was
incompetent and lost all
legal autonomy or the ward
was competent and no
guardian could be
appointed. “Limited”
guardianships are
particularly useful for
establishing special needs
trusts for disabled
individuals who are mentally
competent but have no other
person who can establish a
special needs trust. For a
discussion of special needs
trust for disabled
individuals, read
What is a Special Needs
Trust?
If
you have a role in selecting
or approving a guardian, you
should give serious thought
to the following ten
questions.
-
Does the candidate have
a reputation for
honesty, integrity, and
timeliness?
-
Has the candidate ever
been convicted of a
crime?
-
Has the potential
guardian managed his or
her personal matters in
a responsible manner?
-
Does the candidate have
educational,
professional, or
business experience that
lends itself to the
performance of the
duties of a guardian?
-
Does the candidate have
the time to devote to
the required duties?
-
Is the potential
guardian in good health?
-
Does he or she have a
history of substance
abuse?
-
Is the candidate likely
to engender the respect,
support, and cooperation
of all persons affected
by his or her decisions
(usually other family
members)?
-
If the ward is
incapacitated, did the
ward previously express
his or her wishes as to
whom to appoint as
guardian? As mentioned
above, this person will
have priority absent a
showing of
unsuitability.
-
Although not required,
is the potential
guardian related by
blood or marriage to the
ward, or does he or she
know the ward well
enough to carry out that
person's probable
intentions? Of course,
this decision may be
affected by whether the
appointment is for the
guardian of the person
or of the property.
