When an adult becomes incapacitated or when children lose their parents, someone must make decisions on their behalf. A person who is appointed by a court to look after a ward is known as a guardian.
Only a court may appoint a guardian in North Carolina, but each state has different laws governing the process. A parent may nominate a guardian in their will in case both parents die with a minor child or children. The parent’s wishes are favored, but the court has discretion to appoint a different person if it feels the appointment is in the best interests of the child.
Often a ward has more than one guardian. In such a case, the court appoints a guardian of estate to look after the ward’s financial and property concerns and it appoints a guardian of person to look after the ward’s day-to-day personal concerns. Depending on the type of incapacity the ward faces, splitting the guardian’s job between two individuals may be in the best interests of the ward.
A guardian is a fiduciary of the ward and is legally obligated to act in the ward’s best interests. A guardian’s powers are limited by statute and enforced by the court. In most cases, a guardianship should be treated as a last resort. Guardianships are a cumbersome and expensive mechanism for caring for incapacitated individuals. A properly executed estate plan is a much better option for dealing with incapacity and can often prevent the need for a guardianship.
About the Author