Guardianship

If you are considering petitioning for guardianship over a loved one, we know that you have given it great consideration.  Seagroves Legal understands that such decision is an emotional one and we strive to make the process easier to navigate.  From filing the petition to administering your duties and responsibilities as a guardian, Seagroves Legal can help you move forward.

Often guardianship arises when an individual is no longer to legally manage their own affairs and communicate important decisions.  This inability can be due to cognitive decline from advanced age, mental illness, medical conditions, or intellectual disabilities.  A court can appoint a guardian to assist someone to help make important decisions for them.  In order for a guardian to be appointed for someone, the court must find that person to be legally incompetent.   This can infringe upon one’s rights to control their own self, which is the greatest right that we all have.  Therefore, it is a process that must be taken seriously.

Most often the context arises when decisions need to be made about one’s health or finances.  A guardian appointed over one’s health and person is called a “Guardian of the Person” and a guardian over one’s finances or property is called a “Guardian of the Estate.”  Sometimes a person can be appointed to serve in both roles and those guardians are called “General Guardians.”  The person receiving a guardian is called a “Ward.”

When a person is no longer of the mental capacity to make their own healthcare decisions, it can be very challenging for family and loved ones to make those decisions for them unless they have previously been given some type of legal authority.  Guardianship helps address that issue, allowing someone to step in and assist their family or loved one as their guardian and make or help make decisions that their family or loved one is unable to do on their own.  Some of the most important decisions that a guardian of the person can makes relates to healthcare and residential decisions.  A guardian of the person can manage the medical care needs for the ward such as scheduling doctor’s appointments, consenting to medical procedures, discussing issues with the doctors, and obtaining medical records.  Additionally, a guardian of the person can arrange for appropriate living situations for the ward such as senior living residences, private homes, rehabilitation centers, or assisted living facilities.

Financial institutions greatly guard bank accounts and investments.  Even one’s IRA and insurance benefits can be almost impossible to access without having prior legal authority. These types of things makeup something called the ward’s “Estate.” A guardian of the estate does not manage the ward’s healthcare or person at all.  Only financial matters are handled by the guardian of the estate.  A ward’s financial assets can be vital to their care and wellbeing.  Guardians of the estate are able to manage the ward’s bank accounts and other financial matters like pensions, retirement accounts, and even certain insurance.  One financial exception to the general rule that guardians of the estate handle all finances is social security payments.  If social security income is all that the ward receives, then often a guardian of the person can apply to become that person’s representative payee and avoid the need for a guardian of the estate.  Seagroves Legal can help you determine what type of guardian is necessary.

A guardian of the estate is monitored by the Courts.  Guardians of the estate must get bonded and must account to the court for all finances of the ward and all activity they take in managing the ward’s estate.  They are required to have to keep meticulous records and show all the money that came in and out of the ward’s estate.  Depending on the size of the estate, the accountings can be significant.  Furthermore, guardians of the estate must get court permission with things like selling a ward’s real estate or paying an allowance to the ward.  There are several rules and regulations involved with governing a guardian of the estate and they can be overwhelming.  Seagroves Legal can guide you through these difficult requirements and make the task much easier to process and handle.

There may be costs involved in obtaining guardianship but depending on the financial status of the ward, costs could be waived against the state.  Expenses associated with the guardianship of the estate are generally taxed against the estate itself.  Costs and expenses incurred by a guardian during their scope as guardian for the ward can generally be reimbursed, such as bonds and even attorney’s fees.  Seagroves Legal can help you understand what is required and what options may be available.

To become one’s guardian, you must petition to have that person adjudicated incompetent and request that the court appoint a guardian over them.  The law in North Carolina favors a family member becoming guardian of the ward as a first choice.  However, sometimes a close family friend, boyfriend, girlfriend, or even neighbors can be appointed over the ward.  It just depends on the family dynamic and the ward’s relationships.

If a family member or other loved one is unable or unwilling to serve as a guardian, the court can appoint a state approved person or agency to serve as the ward’s guardian.  Often guardianship agencies are appointed to serve in the role as guardian of the person and an attorney is appointed to serve in the role as guardian of the estate.