Guardian of the Person vs. Guardian of the Estate

When a loved one is unable to care for himself, his finances, or his property, or if he is unable to make or communicate important decisions about his personal affairs, he may need a guardian. In these cases, you will turn to the legal process in North Carolina, where the superior courts are charged with appointing guardians. 

When the court appoints a guardian to care for and assist a person, the person being cared for by the guardian is called a “ward.” A guardian is a fiduciary for the ward, which means that the guardian must act in the best interest of the ward. The court can appoint an individual, such as a family member, friend, or attorney, or an agency, such as the Department of Social Services, as a guardian to handle the ward’s affairs and to protect his assets and property. The court can also appoint a guardian to protect the ward himself.

Guardianship Types Distinguished

The specific type of guardian that the court will appoint depends upon the assistance the ward needs and is classified by the powers granted to the guardian.

A guardian can handle the management of property, such as finances, bank accounts, and paying bills. This is called a “guardian of the estate.” 

A guardian can also manage the ward’s personal affairs, such as self-care, medical needs, and home health care. This type of guardian is referred to as a “guardian of the person.” 

In both types of guardianship, the guardian acts as a fiduciary for the ward, acting in his best interest, and is limited in her powers by the laws applicable to that kind of guardianship. 

Guardian of the Person

A guardian of the person has powers limited to managing and making decisions regarding the ward’s person and personal effects. This means the guardian of the person ensures the ward is taking care of himself or otherwise being cared for physically and mentally, and that the ward’s personal property is also being maintained. 

The powers of the guardian of the person are listed in North Carolina statute, G.S. § 35A-1241. The powers of the guardian of the person are handling and managing the following categories of needs:

  • The ward’s care, comfort, and maintenance, including self-care and home health care, if needed. 
  • The ward’s training, education, and employment.
  • The ward’s rehabilitation and healthcare needs.
  • The ward’s personal property, including his clothing, furniture, vehicles, and personal and household items. 
  • Ensuring the ward has a safe place to live and is properly set up in that place. This living arrangement could be in a private residence with or without others, in a group home or treatment facility, or in a nursing home or other community-based facility. 
  • Arranging and giving consent for medical, legal, psychological, and other professional care, including counseling, treatment, and services for healthcare and mental health.

Guardian of the Estate

A guardian of the estate has powers limited to managing and making decisions regarding the ward’s finances, real estate, and other items that affect the ward’s finances and financial situation. This means the guardian of the estate ensures the ward’s money and assets are being appropriately handled and managed. 

The powers of the guardian of the estate are listed in North Carolina statutes, G.S. § 35A-1251 & G.S. § 1253. The powers of the guardian of the estate include: 

  • Handling and managing bank and credit card accounts
  • Handling and managing stocks and bonds and related accounts, including buying and selling, voting as a shareholder, and paying any fees or commissions due as a holder of stocks and bonds
  • Paying income and property taxes
  • Ensuring any money due to the ward is timely paid; for example, income due from a job, social services, or other sources
  • Filing or participating in any legal action, such as in court or before an agency, to ensure the ward receives any money or property owed to him
  • Performing and entering into any contracts on behalf of the ward; for example, signing a lease on behalf of the ward and paying rent due under that lease, or signing a mortgage on a house and making payments on the mortgage as due
  • Obtaining and maintaining property insurance to protect the ward’s property, including homeowner’s insurance, renter’s insurance, car insurance, and liability insurance
  • Paying the ward’s debts and living expenses
  • Paying any expenses associated with maintaining the ward’s property, including real estate and financial accounts
  • Maintaining the ward’s business or terminating the business in compliance with applicable laws
  • Borrowing money on behalf of the ward to pay the ward’s debts, taxes, or other claims against the ward, such as a money judgment from a court
  • Ensuring the ward’s money is used for the care of the ward’s minor children, spouse, and dependents 
  • Creating and managing a trust for the benefit of the ward

General Guardians

The court can also appoint a “general guardian,” which means the guardian is given the powers of both guardian of the estate and guardian of the person. 

While the processes for obtaining a guardian of the person and a guardian of the estate are the same, the proof needed for one or the other kind of guardian differs based upon the needs of the ward. For instance, in appointing a guardian of the person, you will be required to present evidence that the ward is unable to care for him or herself in matters of personal care, hygiene, and daily activities. On the other hand, when you are seeking to appoint a guardian of the estate, you will likely be asked to present evidence that the ward has mismanaged or neglected certain financial or transactional affairs. In many cases, the evidence will overlap.

Seeking Legal Guidance

If you believe a loved one is struggling to care for himself or manage his or her affairs, the best step you can take is to contact an attorney to discuss your options. An attorney experienced in helping clients file guardianship petitions can discuss whether you might need guardianship of the person, of the estate, or both. 

This article does not establish an attorney-client relationship and must not be construed as legal advice.

Leave a Reply

Your email address will not be published.