Probate Code
Each state’s laws enumerate certain duties and limitations for guardians and conservators. These laws tend to be lengthy and detailed. For a comprehensive understanding of them, including relevant exceptions and requirements, the statutes themselves should be reviewed. Additionally, state laws must be read in conjunction with the order of appointment of a guardian or conservator by the judge which may further limit the guardian’s powers and responsibilities.
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….” The complete listing of powers can be found in G.S. 35A-1251. In addition to duties imposed by law or by order of the clerk, the guardian of the Estate also has the duty to take possession, for the ward’s use, of the ward’s estate, to collect monies due the ward, to pay debts of the ward including taxes, to obey all lawful orders of the court and to observe the standard of judgment and care that an ordinary prudent person serving as a fiduciary would take in acquiring and maintaining the ward’s property.
A guardian of the person has custody of the ward and is responsible for making provisions for the ward’s care, including medical and psychological treatment; comfort, including shelter; and maintenance, including education, training, and employment. [G.S. 35A-1241] If the ward has written advance instructions for the ward’s medical or mental health care, the guardian should honor those instructions.
Prohibited Acts of all Guardians
The real and personal property of the ward may not be used for anything or anyone other than the ward.
The money belonging to the ward must be kept separate from the personal funds of the guardian. The guardian should appear on any guardianship account as acting on behalf of the ward. The guardian should not be listed on any such account as a joint account holder with or without right of survivorship, or as a payee on death.
The guardian may not borrow money from the ward or loan the ward’s money to anyone unless ordered by the court.
The guardian shall not write any checks for “cash” unless regular cash distributions to the ward are authorized by the court.
The ward’s real property may not be sold unless the sale is ordered in advance by the court. A guardian of the estate or general guardian, without court approval, may not sell more than $5,000 of the ward’s personal property in any one accounting period.
The ward’s real property may not be sold unless the general guardian or the guardian of the estate files a special proceeding seeking authority and approval of the court in advance.
If the general guardian or guardian of the estate wishes to sell personal property of the ward, during any one accounting period, which has a value of over $5,000, the guardian must file a motion in the estate proceeding seeking authority and approval by the court, prior to the sale. Sales of less than $5,000 in value during any one accounting period do not need prior court approval, and need only be reported on the next annual accounting.
Guardian may not consent to have the ward sterilized. A ward may only be sterilized when medically necessary treatment for an illness may result in sterilization and that treatment is approved by the clerk.