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By Danielle DeAngelis, Attorney at Law

Be it a hospital, a courtroom, a classroom or a recent celebrity family drama, we have all heard the term “legal guardianship.”  Depending on who you are and what you are trying to accomplish, this term is important to understand.

In its simplest form, a court assigns a person or persons (the guardian(s)) with the legal obligation and responsibility to care for another individual (the ward) in certain specified situations. These may include financial, health and/or personal welfare. The guardian is to act in the best interest of the ward and be unaffected by any conflict of interest.

Not only does a guardianship allow for important decisions to be made on the behalf of the individual who is unable to make such decisions, it gives peace of mind to all of the involved parties that those decisions are being made with the ward’s best interest in mind.

Commonly a “guardianship of a minor” involves the court assigning parental type responsibilities to a party – the guardian – regarding a child. In North Carolina, there are limited circumstances under which guardianship of a minor may occur. Guardianship of a minor may occur following the death of a parent. Guardianship of a minor may also arise in the context of a finding that a parent is not able to care for the child due to disability, medical condition, incarceration, neglect, abuse or the like, involving the removal of a child by a county social services department. In these instances, the assigned guardian is responsible for all parental duties and obligations regarding the minor – to provide a safe place to live, food, education, access to healthcare, etc.

Of course, in addition to the obligation of care for the minor, the guardian also, with the assigned legal status, can take the benefits of guardianship as well – like claiming the minor as a dependent for tax purposes.

Guardianships can be permanent or temporary. Typically, in the event of the death of a parent permanent guardianship will be granted at least until the minor turns 18 (the guardianship may be extended if the situation warrants). In the event of the granting of guardianship through the removal of the child by a county department of social services, guardianship may be granted on a temporary basis until the underlying cause of the guardianship no longer exists.

Guardianships do not apply only to minors. Adults can be placed in guardianship if they are unable to care for and/or make decisions for themselves. This typically occurs due to medical/ health conditions, addiction, or advanced age or disability. This type of guardianship can also be permanent or temporary.

Sometimes, guardianship of an adult is not all encompassing, but rather addresses a specific part of the adult’s life. A medical guardianship gives the guardian authority over making medical decisions for the ward, and a financial guardianship only covers finances.

Unlike a guardianship of a minor, if there is a possibility that you could ever become a guardian of an adult (i.e., your parent), it can be helpful to have discussed future matters with that person prior to them needing a guardianship so that you, as the guardian, can carry out the wishes of your ward.

Requirements, rules and procedures for guardianship differ by state, county and city. Typically, a petitioner for a guardianship will present evidence to the court that the ward is unable and/or unwilling to care for themselves and that a guardianship would be in the best interest of that person. But, as this is a court proceeding, other parties can present evidence as to why guardianship is not needed, should be limited, or should not be offered to the petitioner. And in the future, parties may request the court cancel a guardianship by showing the original reason justifying the guardianship no longer exists or that the guardian has failed to meet their obligations towards the ward. The situation can become complicated when another party contests the guardianship.

Guardianship touches every aspect of a person’s life from finance to health to their overall well-being, and the surrounding circumstances are often charged with emotion. If you are ever in need of a legal guardianship, as guardian or ward, we strongly recommend you speak with an attorney.