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Clerk of Superior Court
Ex-officio Judge Of Probate
Estates Division
Guardianship
Guardianship is the legal
empowerment of one person (the guardian) to act on behalf of and make
decisions for a minor or an incompetent adult and handle property or benefits
due. The guardian must perform all legal responsibilities and
requirements of guardianship.
The Clerk
of Superior Court appoints guardians to manage the person and/or estate
of an incompetent person or minor and has the responsibility of monitoring
the actions of the Guardian and take sufficient action to protect the
interest of the incompetent ward or minor child. This responsibility is
accepted with absolute seriousness and diligence. Therefore no proposed guardian should
accept appointment casually or without equal seriousness and commitment
to learning and following the laws of this State that govern fiduciaries
and guardianships.
There are three (3) different types of guardians
that may be appointed for an incompetent person or minor child:
Guardian of
the Person -
These guardians have authority to decide medical care and treatment,
placement, and all other decisions relating to the care, custody or
control of the Ward. These guardians do not, however, have any authority to
deal with financial matters or property.
Guardian of the Estate - These guardians have authority to control financial matters and
property only. They do not have any authority to make decisions regarding
the care, custody or control of the Ward. A Guardian of the Estate must
post a surety bond to protect the Ward's assets from mismanagement or
fraud.
General Guardian - This type of guardian acts as both a Guardian of the Person and a
Guardian of the Estate; they may make all decisions for the Ward. Since a
General Guardian has financial authority, a surety bond must be posted to
protect the Ward's assets from mismanagement or fraud.
Generally, parents are the
natural guardians of a minor child. A court-appointed legal guardian for
a minor child may be necessary where the minor will inherit property or
receive a settlement arising from an accident; since minors cannot
legally manage their own property, a Guardian of the Estate must be
appointed to take charge of the property, protect it, and distribute it
in the minor child's best interest. Living parents must consent to the
appointment of the Guardian. If the parents' consent cannot be obtained
then a formal hearing must be held before the Clerk of Superior Court.
Parents may nominate a legal
guardian for their child by making the nomination in a properly drafted
Will. While this nomination will be given significant weight by the
Clerk, another guardian may be appointed for good cause.
Adults are presumed legally
competent to handle their own affairs. For a person to be stripped of
their right to make basic decisions, that person must first be
adjudicated incompetent at a hearing before the Clerk of Superior Court.
This proceeding is filed as a Special Proceeding.
If you have been appointed
Guardian for a minor child or an incompetent person, you must take an
Oath of office and post a surety bond to protect the Ward's estate from
fraud or mismanagement. This surety bond acts like an insurance policy,
and you will have to pay a premium based on the amount of protection
needed. Additionally, you will need to file an Inventory of the
guardianship assets within three months of receiving your Letters of
Guardianship and file yearly accountings with the Clerk's office for
audit. These sworn accountings are carefully audited by the Estates
Division. You will need to file proof of assets held, income received,
and amounts disbursed.
When you are appointed Guardian,
you must sign a Notice of Guardianship Duties which explains some of the
important duties of a Guardian. Guardianship is an important and serious
responsibility and all guardians are strongly advised to read the
applicable guardianship statutes and consider seeking competent legal
counsel for additional information. Violation of a fiduciary duty may
result in removal from the guardian position, being held in contempt of
court, and/or criminal prosecution.
Among other
duties as defined by the law of North
Carolina,
the General Guardian or Guardian of the Estate is required to:
● Post a Surety Bond in an amount
determined by the Clerk based on the value of the estate. (Except
funds permitted by the Clerk held under a Receipt and Agreement.)
● File and have approved by
the Clerk an inventory of the entire ward’s estate within three (3)
months after qualifying.
● Prepare written Verified
Petitions and proposed Orders to
be submitted to the Clerk for prior approval of the
disbursement of funds or the dissolving or transferring of any
assets. (Managing certain estates may involve the assistance of an
attorney and/or accountant.)
●Submit to the Clerk for
auditing and approval within the time period established, an Annual
Accounting of all assets showing all receipts and disbursements of the
ward’s estate. The accounting must balance to the penny, be submitted before
the deadline date, and should include at
a minimum all cancelled checks (no
checks written to “cash”), vouchers, and/or receipts for ALL
expenditures from both the income and principle of the guardianship
funds, along with bank statements and proof of all investments. The guardian must account for all
assets and disbursements, and verification to the satisfaction of the
Clerk, must be provided.
● Retain all guardianship
funds in an approved investment and/or interest bearing guardianship
account in the name of the ward and
guardian indicating “guardian for the ward” printed next to the
guardian’s name.
● [Guardian of a Child]
Expend no funds from the guardianship account for maintenance and
education of the child. This is considered a legal obligation of
parenthood.
In accordance with North Carolina
law, the misuse or conversion to personal use of the guardianship assets,
or the failure to manage or account for guardianship assets may result in
removal of the guardian, surcharge of the surety bond to recover the
assets, incarceration for contempt of court a well as criminal
prosecution. It is the
responsibility of the Guardian to learn about these duties and should
consult with an attorney for such advice.
LEGAL TERMS
Fees. Filing
fees, bond fees, inventory and annual accounting fees are assessed as
prescribed by law.
Public Guardian. An appointed
officer under authority of the Clerk, who may be named by the Clerk to
serve as the Guardian of the Estate or General Guardian.
Receipt and
Agreement . Depositing of
funds by the guardian with a qualified banking institution under an
agreement prohibiting the guardians access to any principal amount
without a court order from the Clerk.
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