A legal guardian to an adult who has been declared incompetent is a tough position. If you are struggling as a guardian, you are not alone. Taking on that level of financial and emotional responsibility is not a good fit for everyone.
Being a guardian is a serious endeavour, especially if they have bad physical health, mental health, or are incompetent to care for themselves in any capacity. In addition, estate matters can be complicated and diverse. As a guardian, it is always your responsibility to act in the person’s best interest and this can be a difficult position to manage.
Types of Guardianship Appointments
- General Guardian: As a general guardian, you care for the person and for the estate. The role of general guardian can involve hiring caregivers, taking care of their estate, paying bills, doing laundry, cleaning house, handling any social life, doctor appointments, and more. The time and stress involved in this situation may be more than you can handle with your own life responsibilities to manage.
- Guardian of the Estate: As guardian of the estate, you are only responsible for financial matters pertaining to the person’s estate including business matters, bills to pay, and assets such as real estate or retirement accounts. Someone else may be appointed as the guardian of the person. As guardian of the estate, you work with the guardian of the person to act in the best fiduciary interest of the the person being cared for (the ward).
Don’t Accept It
If you have not already accepted a guardianship but are concerned that you will be appointed, make your desires known to the clerk of court in your district. There will be a hearing to establish guardianship and if you have previously made your wishes known to the clerk of court, there is no reason you would be appointed.
The Way Out
If you are already a guardian and need to find your way out, the law in NC provides ways to remove yourself as guardian through a resignation process. Resignation is a matter of filing a motion with the clerk explaining your circumstances for needing to resign as guardian. As long as you have fully accounted for all issues you are responsible for in a way that satisfies the clerk of court, there is no reason that the clerk should not accept your resignation.
Responsibilities After Resignation
Once you resign as general guardian of a person and their estate, you are still responsible for all accounting in relation to the time of the guardianship. You also must continue to ensure that the adult you are caring for has their needs met until the clerk appoints a successor. There will be a hearing to modify the guardianship and you should attend if you are physically capable.
If you want to resign only as guardian of the estate but continue on as a guardian to the incompetent person, you can apply for a partial resignation. If all accounts are in order, the clerk will declare you as guardian of the person and there will be a hearing to modify the guardianship and appoint a successor guardian of the estate.
Anyone Can Make a Petition
According to North Carolina Law Article 13, anyone can choose to petition the court so that the Clerk of Court removes you as guardian. Choosing to fall down on your duty as guardian in order to be removed is not a good idea though, as the clerk may also choose to take action against you for negligence.
Do You Need to Resign As Guardian?
If you find that you are falling down on the job as guardian in any of the ways listed below, it may be time to resign and let someone else take over the position of general or financial guardian. If you are guilty of the actions below with regards to the person you care for, it is the clerk’s duty to remove you and take action to protect the ward’s interests.
- Wasting their assets or mismanaging their estate.
- Neglecting to care for them
- Becoming insolvent or a nonresident of NC
- A false representation of yourself to the clerk or a mistake in your appointment as guardian
- Violating your financial duty or failing to file required accountings with the clerk
- Having a private interest that hinders you from carrying out your duties
- Being judged incompetent or found unsuitable to continue serving by the clerk
- Being convicted of a felony or being unqualified for the appointment of guardian
- Losing your rights as spouse to the ward
- Failing to post, renew, or increase a bond as required by a court
- Refusing to obey a citation, notice, or process served on you
None of us want to be called out for negligence or haphazard conduct with respect to our legal responsibilities. The law does allow a way to resign as guardian. With this in mind, you can now consider if you should continue being a guardian or start the resignation process. Acting in the person’s best interest can sometimes mean letting the position of guardian go.
Sometimes we all need help deciding what to do in a situation with responsibilities we cannot handle. A knowledgeable Elder Law attorney can help you consider all of the personal factors involved and the law that applies in your situation. Contact us to learn more about guardianships and how to manage the appointment properly or resign from the position. Lawyers are trained in the steps to take and can walk you through making the best decision for your situation.