The Responsibilities and Powers of Guardians

People often want to know what the duties will be once they, or someone else, are appointed guardian of an incompetent adult. Being guardian does require guidance, and it is common for questions to arise. This is a general overview for informational purposes and is not an exhaustive list. Contact guardianship attorney Elspeth Crawford Long should you have any legal questions about the role of a guardian.

Generally, the Guardian must:

1. Ensure that the loyalty and duty of the guardian are to the "actual" needs of the ward.

2. Make decisions that ensure the health and well being of the ward.

3. Involve the person in all decision-making to the extent possible, consistent with the ward's ability.

4. Ensure that the need for guardianship is periodically reviewed and alternatives, including restoration to competency or limited guardianship, are considered.

All guardians are bound by the law and must abide by their fiduciary duties to protect the interests of the ward. Specific duties of a guardian depend on what type of guardianship (i.e., estate, person or general) was created.

Powers and Duties of Guardians

(a) Guardian of the Estate - Unless limited by court order, the Guardian of the Estate has the general power to "perform in a reasonable and prudent manner every act that a reasonable and prudent person would perform incident to the collection, preservation, management, and use of the ward's estate to accomplish the desired result of administering the ward's estate legally and in the ward's best interest...." The complete listing of powers can be found in G.S. 35A-1251 and 1253 (Incompetent) and G.S. 35A-1252 and 1253 (Minor). In addition to duties imposed by law or by order of the clerk, the guardian of the Estate also has the duty to take possession, for the ward's use, of the ward's estate, to collect monies due the ward, to pay debts of the ward including taxes, to obey all lawful orders of the court and to observe the standard of judgment and care that an ordinary prudent person serving as a fiduciary would take in acquiring and maintaining the ward's property.

(b) Guardian of the Person - Unless limited by court order, a guardian of the person has custody of the ward and is responsible for making provisions for the ward's care, including medical and psychological treatment; comfort, including shelter; and maintenance, including education, training, and employment. [G.S. 35A-1241] If the ward has written advance instructions for the ward's medical or mental health care, the guardian should honor those instructions.

(c) General Guardian - Unless otherwise limited by court order, a General Guardian has all the powers and duties of a guardian of the estate and guardian of the person. [G.S.35A-1202(7)]

NOTE: The powers and duties of the guardians referenced in subparagraphs (a), (b), and (c) may be limited by court order allowing the ward to retain certain designated rights and responsibilities, in cases of limited guardianships.

Miscellaneous responsibilities of guardians include promptly notifying the clerk if the guardian changes his or her name or address, or if the residence of the ward changes.

Property, Investments and Verifications

(a) Property - The ward's property, real and personal, must be maintained in such a manner to ensure the ward has a place to live or money with which to pay for his or her living expenses. The guardian must maintain an accurate accounting of the ward's property, income, expenses and disbursements. To the extent possible, only the ward's income (rather than any portion of the principal) should be used to pay for his or her care. The guardian of the estate or general guardian must petition the clerk in advance should real property need to be sold to pay for the ward's needs, or if more than $5,000 of the ward's personal property needs to be sold in any one accounting period to pay for the ward's needs.

(b) Investments - The ward's funds shall be invested in interest bearing accounts or other approved investment accounts [G.S. 35A-1251; 1252] in the name of the ward, and showing the name of the guardian who is acting on behalf of the ward. The guardian must properly manage the funds to ensure money is available to pay for the ward's needs, such as shelter, food, clothing and medical care.

NOTE: Failure to properly manage and secure the ward's funds may result in personal liability for the guardian's breach of fiduciary duty. Investment of the ward's funds in securities or other investment devices that subject those funds to loss of principal, may, under the reasonable prudent man rule, subject the guardian to personal liability for breach of fiduciary duty.

(c) Verifications - The guardian must maintain cancelled checks and receipts of all expenditures, and provide them to the clerk with each accounting, together with bank statements, titles, or other documentary evidence of balances still held or invested.

Prohibited Acts of all Guardians

• The real and personal property of the ward may not be used for anything or anyone other than the ward.

• The money belonging to the ward must be kept separate from the personal funds of the guardian. The guardian should appear on any guardianship account as acting on behalf of the ward. The guardian should not be listed on any such account as a joint account holder with or without right of survivorship, or as a payee on death.

• The guardian may not borrow money from the ward or loan the ward's money to anyone unless ordered by the court.

• The guardian shall not write any checks for "cash" unless regular cash distributions to the ward are authorized by the court.

• The ward's real property may not be sold unless the sale is ordered in advance by the court. A guardian of the estate or general guardian, without court approval, may not sell more than $5,000 of the ward's personal property in any one accounting period.

• The ward's real property may not be sold unless the general guardian or the guardian of the estate files a special proceeding seeking authority and approval of the court in advance.

• If the general guardian or guardian of the estate wishes to sell personal property of the ward, during any one accounting period, which has a value of over $5,000.00, the guardian must file a motion in the estate proceeding seeking authority and approval by the court, prior to the sale. Sales of less than $5,000.00 in value during any one accounting period do not need prior court approval, and need only be reported on the next annual accounting.

• Minor's funds should not be used by the minors parents for maintenance (food, shelter, clothing) and education of the minor, since the parents are legally obligated to pay for their children's maintenance and education until the children reach age 18. Should a parent or guardian be unable to provide for the minor's basic maintenance needs the guardian may petition the Clerk for permission to use some of the minor's funds for those needs. The clerk, however, has total discretion in determining whether the request should be granted.

• The minor's property must be delivered to the minor once the minor has reached 18 and the clerk has approved the final accounting.

• Guardian may not consent to have the ward sterilized. A ward may only be sterilized when medically necessary treatment for an illness may result in sterilization and that treatment is approved by the clerk.

Accountings

1. Types of Accountings

(a) Inventory - Within three (3) months from the date of qualification, the guardian must file with the Clerk of Superior Court's office an accurate inventory of the ward's estate, giving descriptions and values of all real and personal property owned by the ward as of the date of qualifying. The guardian should obtain copies of signature cards and deposit contracts associated with any joint accounts from the depository financial institution and submit them with the inventory. [G.S. 35A-1261] Property discovered later must be reported on a supplemental inventory. [G.S. 35A- 1263.1] Income of the ward's estate (e.g., pension payments, interest, social security, etc.), property later acquired by the estate, or asset conversions (e.g., sale of real estate or stock, foreclosure of deed of trust, etc.) must be reported on the next annual accounting.

(b) Annual Accounting - The guardian must file an annual accounting no later than thirty (30) days after the expiration of one year from the date on which he or she qualified to serve. The accounting may be filed earlier. The guardian must then file annual accounts every year thereafter until the final accounting is filed. [G.S. 35A-1264]

(c) Final Accounting - The guardian must file a final accounting within sixty (60) days after the termination of the guardianship. [G.S. 35A-1266]

2. Proofs - All accountings must be accompanied by cancelled checks or other proof satisfactory to the clerk for all disbursements and distributions, and for all balances held or invested (e.g., bank or brokerage statement showing balance held, vehicle title, recorded deed to real estate, etc.). [G.S. 35A-1268]

3. Contents Of Accountings - All accountings filed with the Clerk of Superior Court must be signed under oath and contain:

(a) The period which the account covers and whether it is an annual accounting or final accounting;

(b) The amount and value of the property of the estate according to the inventory and appraisal, or according to the previous accounting; the manner and nature of any investments; the amount of income and additional property received during the accounting period; and all gains or losses from the sale of any property or otherwise;

(c) All payments, charges, losses, and distributions;

(d) The property on hand constituting the balance of the estate, if any;

(e) Any other facts and information determined by the clerk to be necessary to an understanding of the account. [G.S. 35A-1264, 1266]

4. Failure to File Accountings - If the guardian fails to account as required, or if he or she renders an unsatisfactory account, the Clerk of Superior Court may, after notice, issue an order for the guardian to appear and show cause as to why she or he failed to file an inventory or account. If, within 20 days after service of such an order, she or he does not make the required filing, the clerk may have the sheriff serve the guardian with an order of contempt and commitment, and the sheriff will place the guardian in the county jail until she or he complies with the order. The guardian shall be personally liable for all costs associated with such proceedings. The clerk may also remove the guardian from office and appoint someone else to complete the administration of the estate. [G.S. 35A-1265]

The Administrative Office of Courts has published a booklet to assist guardians called Responsibilities of Guardians in North Carolina that is an excellent source of information about the rights and responsibilities of guardians. Contact attorney Elspeth Crawford Long should you have any legal questions about the role of a guardian.