A guardian may be appointed by the court when an adult is not capable of managing his or her own care or finances due to illness, age or decreased capacity. A guardian may also be appointed to protect the financial and legal interests of a minor.
In order for a guardian to be appointed for an adult, the adult must first be determined to be legally incompetent. This determination is made in a judicial proceeding before the Clerk of Superior Court. The Clerk may consider evidence from doctors, family members and even the adult himself. If the Clerk determines that the adult is not capable of managing his own affairs, the Clerk will determine the type of guardian or guardians to be appointed. A guardian of the estate is responsible for managing the property of the incompetent adult. A guardian of the person is responsible for managing the well-being of the incompetent adult. A general guardian is the term used to describe a person who acts as both the guardian of the estate and the guardian of the person. Finally, the Clerk of Court will determine the appropriate person or persons to serve as guardian for the incompetent adult.
A guardian of the estate, including a general guardian, is burdened with a great deal of responsibility. Among other responsibilities, the guardian of the estate must file reports with the Clerk of Court annually, and the guardian of the estate may be personally liable if the property of the minor or the incompetent adult is not managed properly.
Based on our experiences, the first year of a guardianship is the most difficult. New guardians are unfamiliar with their duties. While you may get some general advice from the Clerk’s office, the deputy clerks and assistant clerks are not authorized to practice law. It could be a year or more before you file your first annual account and before the Clerk of Court is in a position to tell you that things have been done incorrectly. Remedying such mistakes can be time-consuming and expensive and, under certain circumstances, cannot be remedied at all.