Can a Guardian in North Carolina Sell Property of a Ward?
Full Question:
Answer:
The answer will depend on the reason for the sale and the powers and type of guardianship established. Limited guardian" means a guardian who has been appointed by the court to exercise the legal rights and powers specifically designated by court order entered after the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property, or after the person has voluntarily petitioned for appointment of a limited guardian.
"Plenary guardian" means a person who has been appointed by the court to exercise all delegable legal rights and powers of the ward after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property.
Assuming you have authorization to conduct real property transfers, it must be done in the guardian’s best interest and not for personal benefit. A court clerk may order the property to be sold after a petition is made according the the statute below.
Please see the following NC statutes:
§ 35A-1301. Special proceedings to sell, exchange, mortgage, or lease.
(a) Whenever used herein, the word "guardian" shall be construed to
include general guardian, guardian of the estate, ancillary guardian,
next friend, guardian ad litem, or commissioner of the court acting
pursuant to this Article, but not a guardian who is guardian of the person
only; and the word "mortgage" shall be construed to include deeds of
trust.
(b) A guardian may apply to the clerk, by verified petition setting
forth the facts, to sell, mortgage, exchange, or lease for a term of more
than three years, any part of his ward's real estate, and such proceeding
shall be conducted as in other cases of special proceedings. The clerk,
in his discretion, may direct that the next of kin or presumptive heirs
of the ward be made parties to such proceeding. The clerk may order a
sale, mortgage, exchange, or lease to be made by the guardian in such way
and on such terms as may be most advantageous to the interest of the
ward, upon finding by satisfactory proof that:
(1) The ward's interest would be materially promoted by such sale,
mortgage, exchange, or lease, or
(2) The ward's personal estate has been exhausted or is insufficient
for his support and the ward is likely to become chargeable on the
county, or
(3) A sale, mortgage, exchange, or lease of any part of the ward's real
estate is necessary for his maintenance or for the discharge of debts
unavoidably incurred for his maintenance, or
(4) Any part of the ward's real estate is required for public
purposes, or
(5) There is a valid debt or demand against the estate of the ward;
provided, when an order is entered under this subdivision, (i) it shall
authorize the sale of only so much of the real estate as may be
sufficient to discharge such debt or demand, and (ii) the proceeds of
sale shall be considered as assets in the hands of the guardian for the
benefit of creditors, in like manner as assets in the hands of a personal
representative, and the same proceedings may be had against the guardian
with respect to such assets as might be taken against an executor,
administrator or collector in similar cases.
The order shall specify particularly the property thus to be disposed
of, with the terms of leasing or sale or exchange or mortgage, and shall
be entered at length on the records of the court. The guardian may not
mortgage the property of his ward for a term of years in excess of the
term fixed by the court in its order.
(c) In the case of a ward who is a minor, no sale, mortgage, exchange,
or lease under this Article shall be made until approved by the superior
court judge, nor shall the same be valid, nor any conveyance of the
title made, unless confirmed and directed by the judge, and the proceeds
of the sale, mortgage, exchange, or lease shall be exclusively applied
and secured to such purposes and on such trusts as the judge shall
specify.
(d) All petitions filed under this section wherein an order is sought
for the sale, mortgage, exchange, or lease of the ward's real estate
shall be filed in the county in which all or any part of the real estate
is situated.
(e) The procedure for a sale pursuant to this section shall be as
provided by Article 29A of Chapter 1 of the General Statutes.
(f) Nothing herein contained shall be construed to divest the court of
the power to order private sales as heretofore ordered in proper cases.
(g) On and after June 1, 1973, no sales of property belonging to minors
or incompetent persons prior to that date by next friend, guardian ad
litem, or commissioner of the court regular in all other respects shall
be declared invalid nor shall any claim or defense be asserted on the
grounds that said sale was not made by a duly appointed guardian as
provided herein or on the grounds that said minor or incompetent person
was not represented by a duly appointed guardian.
§ 35A-1302. Procedure when real estate lies in county in which guardian
does not reside.
In all cases where a guardian is appointed under the authority of
Chapter 35A and such guardian applies to the court for an order to sell,
mortgage, or exchange all or part of his ward's real estate, and such
real estate is situated in a county other than the county in which the
guardian is appointed and qualified, the guardian shall first apply to
the clerk of the county in which he was appointed and qualified for an
order showing that the sale, mortgage, or exchange of his ward's real
estate is necessary or that the ward's interest would be materially
promoted thereby The clerk to whom such application is made shall hear and
pass upon the same and enter his findings and order as to whether said
sale, mortgage, or exchange is necessary or would materially promote the
ward's interest, and said order and findings shall be certified to the
clerk of the county in which the ward's land, or some part of it, is
located and before whom any petition or application is filed for the
sale, mortgage, or exchange of said land. Such findings and orders so
certified shall be considered by the court along with all other evidence
and circumstances in passing upon the petition in which an order is
sought for the sale, mortgage, or exchange of said land. In the case of a
ward who is a minor, before such findings and orders shall become
effective the same shall be approved by the superior court judge holding
the courts of the district or by the resident judge.