What are the responsibilities and liabilities of a legal guardian?

Full Question:

What are the responsibilities and liabilities of a legal guardian?
01/24/2009   |   Category: Guardianship   |   State: North Carolina   |   #15060

Answer:

A guardianship can be established for the person, their estate, or both. A conservator or guardian manages the daily financial matters of the estate and/or provides care for the person. An inventory and appraisal of the estate is required to be filed in court and a bond may be required. Requirements vary by type of guardianship, such as for the estate and/or person and whether for an adult or minor.

Please see the following NC statutes for specific powers and duties that apply to various types of guardianships:

§ 35A-1241. Powers and duties of guardian of the person.

(a) To the extent that it is not inconsistent with the terms of any
order of the clerk or any other court of competent jurisdiction, a
guardian of the person has the following powers and duties:

(1) The guardian of the person is entitled to custody of the person of
the guardian's ward and shall make provision for the ward's care,
comfort, and maintenance, and shall, as appropriate to the ward's needs,
arrange for the ward's training, education, employment, rehabilitation or
habilitation. The guardian of the person shall take reasonable care of
the ward's clothing, furniture, vehicles, and other personal effects that
are with the ward.

(2) The guardian of the person may establish the ward's place of abode
within or without this State. In arranging for a place of abode, the
guardian of the person shall give preference to places within this State
over places not in this State if in-State and out-of-State places are
substantially equivalent. The guardian also shall give preference to
places that are not treatment facilities. If the only available and
appropriate places of domicile are treatment facilities, the guardian
shall give preference to community-based treatment facilities, such as
group homes or nursing homes, over treatment facilities that are not
community-based.

(3) The guardian of the person may give any consent or approval that
may be necessary to enable the ward to receive medical, legal,
psychological, or other professional care, counsel, treatment, or
service; provided that, if the patient has a health care agent appointed
pursuant to a valid health care power of attorney, the health care agent
shall have the right to exercise the authority granted in the health care
power of attorney unless the Clerk has suspended the authority of that
health care agent in accordance with G.S. 35A-1208. The guardian shall
not, however, consent to the sterilization of a mentally ill or mentally
retarded ward unless the guardian obtains an order from the clerk in
accordance with G.S. 35A-1245. The guardian of the person may give any
other consent or approval on the ward's behalf that may be required or in
the ward's best interest. The guardian may petition the clerk for the
clerk's concurrence in the consent or approval.

(b) A guardian of the person is entitled to be reimbursed out of the
ward's estate for reasonable and proper expenditures incurred in the
performance of his duties as guardian of the ward's person.

(c) A guardian of the person, if he has acted within the limits imposed
on him by this Article or the order of appointment or both, shall not be
liable for damages to the ward or the ward's estate, merely by reason of
the guardian's:

(1) Authorizing or giving any consent or approval necessary to enable
the ward to receive legal, psychological, or other professional care,
counsel, treatment, or service, in a situation where the damages result
from the negligence or other acts of a third person; or

(2) Authorizing medical treatment or surgery for his ward, if the
guardian acted in good faith and was not negligent.

§ 35A-1242. Status reports for incompetent wards.

(a) Any corporation or disinterested public agent that is guardian of
the person for an incompetent person, within six months after being
appointed, shall file an initial status report with the designated
agency, if there is one, or with the clerk. Such guardian shall file a
second status report with the designated agency or the clerk one year
after being appointed, and subsequent reports annually thereafter. The
clerk may order any other guardian of the person to file status reports.
If a guardian required by this section to file a status report is
employed by the designated agency, the guardian shall file any required
status report with both the designated agency and the clerk.

(b) Each status report shall be filed under the guardian's oath or
affirmation that the report is complete and accurate so far as he is
informed and can determine.

(c) A clerk or designated agency that receives a status report shall
not make the status report available to anyone other than the guardian,
the ward, the court, or State or local human resource agencies providing
services to the ward.

"Section 35A-1251. Guardian's powers in administering incompetent
ward's estate.

In the case of an incompetent ward, a general guardian or guardian of
the estate has the power to perform in a reasonable and prudent manner
every act that a reasonable and prudent person would perform incident to
the collection, preservation, management, and use of the ward's estate to
accomplish the desired result of administering the ward's estate legally
and in the ward's best interest, including but not limited to the
following specific powers:.

(17)
a. Without a court order to lease any of the ward's real estate
for a term of not more than three years, or to sell, lease or exchange
any of the ward's personal property including securities, provided that
the aggregate value of all items of the ward's tangible personal property
sold without court order shall not exceed five thousand dollars ($5,000) per accounting period. When any item of the ward's tangible personal property has a value which when increased by the value of all other tangible personal property previously sold in the estate without a court order would exceed five thousand dollars ($5,000) in the current accounting period, a guardian may sell the item only as provided in subdivision (17)

b.

"Section 35A-1252. Guardian's powers in administering minor ward's
estate.

In the case of a minor ward, a general guardian or guardian of the
estate has the power to perform in a reasonable and prudent manner every
act that a reasonable and prudent person would perform incident to the
collection, preservation, management, and use of the ward's estate to
accomplish the desired result of administering the ward's estate legally
and in the ward's best interest, including but not limited to the
following specific powers:.

(14)
a. Without a court order to lease any of the ward's real estate
for a term of not more than three years, or to sell, lease or exchange
any of the ward's personal property including securities, provided that
the aggregate value of all items of the ward's tangible personal property
sold without court order shall not exceed five thousand
dollars ($5,000) per accounting period. When any item of the ward's
tangible personal property has a value which when increased by the value
of all other tangible personal property previously sold in the estate
without a court order would exceed five thousand dollars ($5,000) in the current accountingperiod, a guardian may sell the item only as provided in subdivision (14)b.

§ 35A-1253. Specific duties of guardian of estate.

In addition to any other duties imposed by law or by order of the
clerk, a general guardian or guardian of the estate shall have the
following specific duties:

(1) To take possession, for the ward's use, of all his estate.

(2) To diligently endeavor to collect, by all lawful means, all bonds,
notes, obligations, or moneys due his ward.

(3) To pay income taxes, property taxes, or other taxes or assessments
owed by the ward, out of the ward's estate, as required by law. If any
guardian allows his ward's lands to be sold for nonpayment of taxes or
assessments, he shall be liable to his ward for the full value thereof.

(4) To observe the standard of judgment and care under the
circumstances then prevailing that an ordinarily prudent person of
discretion and intelligence, who is a fiduciary of the property of
others, would observe as such fiduciary in acquiring, investing,
reinvesting, exchanging, retaining, selling, and managing the ward's
property. If the guardian has special skills or is named as guardian on
the basis of representations of special skills or expertise, to use those
skills.

(5) To obey all lawful orders of the court pertaining to the
guardianship and to comply with the accounting requirements of this
Subchapter.

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