In the last Legal Corner, we covered the reasons power of attorneys are necessary. Generally, a person has the ability to give another person permission to act on their behalf through a power of attorney. However, what happens in those situations where someone has not established a durable power of attorney and does not legally have the ability to allow someone to make decisions for them? Let’s review the basics of a guardian and the benefits of having guardianship.
A guardian is a person or a corporation who has been given the responsibility to care for a ward or the ward’s estate. A ward is a person who has been declared incompetent or an under aged child. When a person is declared incompetent, this means they do not have the ability to manage personal matters or the ability to communicate important decisions concerning themselves, their family, or their property. This lack of ability could be because of a mental illness, a mental defect, a mental illness, a mental injury, or anything similar to those type of conditions. The term guardianship is used to define the relationship between the ward and the guardian that has been appointed to make decisions on the ward’s behalf.
A person may be appointed as a guardian of an estate, a guardian of a person, a general guardian, or a guardian for a minor. A guardian of an estate is allowed to make decisions that only concern the money, property, and business affairs of the ward. A guardian of a person is only allowed to make decisions concerning the care, custody, and control of the ward. A general guardian has the authority to make decisions involving both the ward’s care and property. A minor or child under the age of 18 is appointed a guardian only if they do not have a living parent or the parents’ rights have been terminated by the court. A guardian for a minor has the authority to make decisions concerning the minor’s care and property.
In order for a person to be appointed as a guardian, they must meet required qualifications which include going through the required legal process. When a person wants to become a guardian for another, they must first petition or apply to the Clerk of Superior Court in the county where the ward lives. Thus, the person applying for guardianship becomes the petitioner. Once the required petition has been filed and all other initial instructions are followed, the clerk will schedule a hearing to determine if the ward is incompetent. Additionally, the ward has the right to representation by an attorney or a guardian ad litem throughout the hearing process. A guardian ad litem is an attorney appointed by the Clerk of Superior Court to represent the ward during the competency hearing. A minor does not have to be declared incompetent in order to have a guardian appointed, because they are considered incompetent by state law until they are 18 years old.
If the clerk decides that the ward is incompetent, the petitioner will be appointed as guardian as long as the clerk believes they will follow the best interest of the ward. Once the guardian is appointed he or she may be required by the clerk to post a bond. A bond is a financial document used to assure or guarantee that the guardian will fulfill his or her responsibilities successfully. Lastly, the clerk will issue an order or legal document authorizing letters of guardianship to be issued to the guardian. The letters of guardianship provide proof that the appointed guardian as the authority to act on behalf of the ward.
Once a guardian has been appointed by the clerk the guardianship can terminated only by the following: when the guardian petitions to the court clerk to be removed as the guardian, if the guardian dies, if the ward later becomes competent, or when the ward dies. Moreover, the guardianship maybe terminated by the clerk if the guardian becomes incompetent or unable to continue serving, convicted of a felony, mismanages or abuses the ward’s money or estate, or fails to fulfill any other legal requirements. Guardianship for a minor will terminate after the child’s 18th birthday.
As always all matters concerning the legal process or requirements should be discussed with a licensed attorney in detail in order to ensure that everything is completed correctly under the required state regulations. Be Informed Be Prepared.
Bellonora McCallum is an attorney at the McCallum Law Firm, PLLC, in Rockingham and Laurinburg. Reach her at 910-730-4064 or visit www.mccallumlawfirm.com.