Guardianship/Incompetency proceedings generally begin as a Special Proceeding
. However, guardian of the Estate of a minor proceedings begin in the Estates Division
There are three (3) different types of guardians that may be appointed for an incompetent person or minor child:
- Guardian of the Person - These guardians have authority to decide medical care and treatment, placement, and all other decisions relating to the physical care, custody or control of the Ward. These guardians do not, however, have any authority to deal with financial matters or property.
- Guardian of the Estate - These guardians have authority to control financial matters and property only. They do not have any authority to make decisions regarding the care, custody or control of the Ward. A Guardian of the Estate must post a surety bond to protect the Ward's assets from mismanagement or fraud. The Guardian of the Estate must complete Annual Accounts and produce all documentation of money coming in to the estate, receipts, bank statements, and cancelled checks to support the details of the Annual Account.
- General Guardian - This type of guardian acts as both a Guardian of the Person and a Guardian of the Estate; they may make all decisions for the Ward. Since a General Guardian has financial authority, a surety bond must be posted to protect the Ward's assets from mismanagement or fraud. The General Guardian must complete Annual Accounts and produce all documentation of money coming in to the estate, receipts, bank statements, and cancelled checks to support the details of the Annual Account.
Appointment of Guardians for a Minor Child
Generally, parents are the natural guardians of a minor child. A court-appointed legal guardian for a minor child may be necessary where the minor will inherit property or receive a settlement arising from an accident; since minors cannot legally manage their own property, a Guardian of the Estate must be appointed to take charge of the property, protect it, and distribute it in the minor child's best interest. Living parents must consent to the appointment of the Guardian. If the parents' consent cannot be obtained then a formal hearing must be held before the Clerk of Superior Court.
Please be advised of the following: the Clerk of Superior Court only has jurisdiction to appoint a Guardian of the Person or General Guardian for a minor child that has no living parents or other guardian. The Clerk of Superior Court cannot appoint a Guardian of the Person or General Guardian for a minor child if that minor's parents are still living, even with the parents' consent. In the event of living parents, matters must be decided in the Civil District Court.
Parents may nominate a legal guardian for their child by making the nomination in a properly drafted Will. While this nomination will be given significant weight by the Clerk, another guardian may be appointed for good cause.
Appointment of Guardians for an Incompetent
Adults are presumed legally competent to handle their own affairs. For a person to be stripped of their right to make basic decisions, that person must first be adjudicated incompetent at a hearing before the Clerk of Superior Court. This proceeding is filed as a Special Proceeding; please see Guardianship Proceedings for more detailed information.
If you have been appointed Guardian for a minor child or an incompetent person, you must take an Oath of office and post a surety bond to protect the Ward's estate from fraud or mismanagement. This surety bond acts like an insurance policy, and you will have to pay a premium based on the amount of protection needed. Additionally, you will need to file an Inventory of the guardianship assets within three months of receiving your Letters of Guardianship and file yearly accountings with the Clerk's office for audit. These sworn accountings are carefully audited by the Estates Division. You will need to file proof of assets held, income received, and amounts disbursed.
When you are appointed Guardian, you must sign a Notice of Guardianship Duties which explains some of the important duties of a Guardian. Guardianship is an important and serious responsibility and all guardians are strongly advised to read the applicable guardianship statutes and consider seeking competent legal counsel for additional information. Violation of a fiduciary duty may result in removal from the guardian position, being held in contempt of court, and/or criminal prosecution.
For more information regarding guardian appointments, you may visit the Edgecombe County Clerk’s Office.
In addition, many of the appropriate forms are also available online; please see Forms & Calendars for more information.