Understanding Guardianships in North Carolina

What is a guardianship?

Guardianship is a legal arrangement where the court appoints a person or agency (the guardian) to make decisions and represent an individual lacking the capacity to manage personal affairs, property, or both. When a person can no longer handle their legal and/or financial affairs, it may be necessary to have the Court appoint a legal guardian. A court process is required to establish guardianship.

Historically, a Clerk presiding over a guardianship proceeding in North Carolina has the authority to appoint a guardian over the person, a guardian over the estate, or a general guardian over the ward.  The specific rules and laws relating to guardianships can be found in North Carolina General Statutes Chapter 35A.  Guardianship proceedings are initiated as a petition before the Clerk of Superior Court in the county where the ward resides. 

A guardian is not responsible for the debts or legal obligations of the ward.  Guardians may receive monetary compensation or a commission for handling the ward’s affairs.  A guardianship ends when one of the following events occurs: (1) the guardian resigns; (2) the ward regains competence; (3) the Clerk enters an order removing a guardian; or (4) the ward dies. 

Once established, a ward can only be removed from the state by permission of the Court.  When a guardianship has been established outside of North Carolina, the Court having jurisdiction over the ward must issue an order to transfer guardianship to North Carolina before the ward can be physically moved or transferred between states.  All states have their own specific laws and requirements regarding guardianships, so it is best advised to have an attorney’s advice from each state to ensure that a guardianship transfer goes smoothly.

In North Carolina, a recently enacted law introduces and suggests a less restrictive guardianship alternative.

The “less restrictive alternative” is “an arrangement enabling a respondent to manage his or her affairs or to make or communicate important decisions concerning his or her person, property, and family that restricts fewer rights of the respondent than would the adjudication of incompetency and appointment of a guardian.” S.L. 2023-124, sec. 7.1, amending G.S. 35A-1101(11a).  The definition includes a non-exhaustive list of examples of less restrictive alternatives.  They are:

• supported decision-making,
• appropriate and available technological assistance,
• appointment of a representative payee, and
• appointment of an agent for the respondent, including under a power of attorney for health care or finances.

This alternative allows the ward to have help and support from a legal representative but stops short of the Court having to make a judicial determination that the ward as incompetent.  This would allow a relationship much more akin to an agent – principal relationship.

While this new designation allows more options for those needing assistance, the ideal situation is to have the power of attorney documents in place prior to the need for help and/or lack of competency or capacity. 

Preventing Guardianships

As elder law and estate planning attorneys, we try to advise our clients to plan ahead to prevent the need for a legal guardian to be appointed by the Court by encouraging them to have (1) a general durable power of attorney and (2) a health care power of attorney in place.  Under the terms of a typical power of attorney document, the principal is the person appointing or designating another person, or agent, to act on their behalf.  Similarly, in a guardianship, the principal is referred to as the “ward” and the legal guardian acts as the ward’s legal representative.

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