Last week we started a discussion about guardians in North Carolina by looking at some common questions about them. This week we thought we would go into more depth about what a guardian’s responsibilities are. As with any specific question about guardians, estate planning, or any legal topic, our advice here is not intended to provide you with specific guidance, but rather, to give you a general idea of the legal landscape. If you need personalized advice or have specific questions, you should contact us to set up an appointment so we can talk about guardians in North Carolina.
Guardians in North Carolina. What does a guardian do?
The answer to this question depends on the specific kind of guardianship powers given to the guardian by a North Carolina court. As we discussed in last week’s blog, there is more than one type of guardian in North Carolina, and each type has different responsibilities.
Take, for example, a guardian of the estate. An estate is all the property or financial interests left behind by a deceased or legally incapacitated person. So, the guardian of the estate is legally responsible for making decisions about the ward’s estate. These involve decisions about finances, bills, investments, property, assets, debts, and anything else of that nature.
Let’s say that your young nephew’s parent’s die and you are appointed as the guardian of his estate. In this situation you are responsible for using the property your nephew inherits to take care of his financial needs. You’ll be responsible for paying any costs associated with education, health care, and daily living expenses.
Guardians in North Carolina. What if the guardian isn’t acting correctly?
The question of what happens when a guardian misuses his or her authority or position is sometimes complicated. Guardians have a lot of authority and power over the ward, the ward’s interests, or both. The law recognizes this power, and imposes strict requirements on anyone appointed to a guardianship position.
All guardians are considered fiduciaries under the law. A fiduciary is a person who has an enhanced legal duty towards someone else. In our daily lives we rarely owe others any heightened duty. While we have to act reasonably and responsibly with others with whom we interact, we are under no general obligation to act for their benefit.
The same is no true with fiduciaries such as guardians. When a court appoints someone as a guardian, that person is legally obligated to do what is in the ward’s best interests. This extends to every part of the guardianship process. Courts typically require, for example, guardians of the estate to submit an accounting to the court. The accounting details what the ward owns, how the guardian has used the ward’s property, as well as any other details the court requires.
If the court finds that a guardian has misused his or her power or has not performed guardianship duties properly, the court can remove the guardian and appoint another. In some situations, a guardian who intentionally fails to protect the ward’s interests or who acts contrary to his or her fiduciary duty can face criminal charges.