In certain situations, an underage child may lose their parents, or their parents may prove incapable of taking care of them. To ensure the child’s welfare, the courts can appoint a person or agency to act as the child’s guardian. A guardian takes on the role of parent and makes decisions to ensure the well-being of the child.
A guardian may be appointed for a child who has been orphaned or because a North Carolina court has determined that it is in the child’s best interest to terminate the parental rights of a child’s biological parents. These cases often involve child abuse or neglect, drug or alcohol addiction, or parental incapacity. In some situations, a child’s parents have named a person in their will to take over the job of rearing their child in the event of the parents’ deaths or incapacity.
The family law attorneys of Charles R. Ullman & Associates can guide you through the process of petitioning the court to appoint you as guardian of a child in need. We can help you compile evidence of why the termination of parental rights is in the child’s best interests, prepare the legal petition to appoint you as guardian and represent you in court. If necessary, our legal team can help you fight a guardianship petition that should not be granted.
We provide high-quality representation and can protect your rights and interests as well as those of the minor-age child or children who should be placed under your care. Contact us at (919) 263-2873 or online to discuss your needs in Raleigh, Cary, or elsewhere in Wake County today.
What Is Legal Guardianship in North Carolina?
A court-appointed guardian has the fiduciary duty and responsibility to care for their ward’s well-being and/or for their estate.
A person may be appointed:
- Guardian of the person, with responsibility for making provisions for the ward’s care and comfort, including shelter and medical care, and maintenance, which for a minor would include education and moral and spiritual training. Additional duties and powers of the guardian of the person are found at C.G.S. 35A-1241.
- Guardian of the estate, with responsibility for administering the ward’s estate (assets and debts) in the ward’s best interest. Additional duties and powers of the guardian of a minor’s estate are found at C.G.S. 35A-1252 and 35A-1253.
- General guardian, which encompasses person and estate.
A guardian of the person or a general guardian may be appointed for an underage child if the minor has no living parents or the rights of the parents have been terminated. The guardianship terminates when a minor ward turns 18 years old or is emancipated sooner by marriage or court order.
Why Would an Underage Child Require a Guardian?
There are many possible reasons an underage child might need a guardian appointed. They typically involve the child’s biological or adoptive parents’ absence or lack of ability. Potential situations include:
- Death of the parents
- Parents’ mental or physical incapacity
- Parents’ absence, such as due to incarceration
- Parents’ inability to provide a stable or safe home
- Abuse or neglect by one or both parents
- Parents’ substance abuse or addiction problems.
How To Obtain Guardianship Over a Minor Child in North Carolina
The attorneys of Charles R. Ullman & Associates can help you petition the court to appoint you as guardian of a minor age child. We will help you gather and submit the required information to the court and represent you in the hearing before the Clerk of Court.
To obtain guardianship, you must apply to the Clerk of Superior Court in the county where the child lives. The application form, provided by the clerk’s office, requires a preliminary inventory of the ward’s assets and liabilities. This may be limited for most minor-age children but would include any personal property or real estate, bank accounts, stocks and bonds, and an estimated value of these assets. It also requires an estimate of the ward’s debts.
There are court costs and fees to be paid, and you must indicate which type of guardianship you are seeking (of the person, of the estate, or general guardianship).
After receiving the required documents, the clerk will set a hearing. The clerk will appoint a guardian ad litem advocate to represent the interests of the underage child and make recommendations to the court. The guardian ad litem advocate will speak to the child to learn their needs and desires, meet with the intended guardians, and file a report with the court.
The hearing is meant to be informal, and the clerk may consider whatever testimony, written reports, affidavits, documents, or other evidence the clerk finds necessary to determine what would serve the minor’s best interests. In cases of an orphaned child, the clerk is to give substantial weight to any recommendation for a guardian in the will of the deceased parent(s).
North Carolina law states that “the clerk shall in every instance base the appointment of a guardian or guardians on the minor’s best interest.”
Once approved, the clerk of court will issue letters of guardianship, which serve as legal proof and authorization of the guardian to act on behalf of the ward.
As your attorneys, we will work to make the process of assuming guardianship as efficient and as positive an experience as possible for you by explaining the steps and helping you fulfill all legal requirements. If there are issues that could keep you from becoming a child’s guardian, we will work to resolve them with the least impact possible on your family’s plans.
Temporary vs. Permanent Guardianship
A court order may establish temporary guardianship with a defined time period in situations such as a parent’s military deployment. Or a guardianship may be temporary with provisions requiring the natural parent(s) to remedy problematic situations, such as addiction or an unstable or unsafe home environment before the court-ordered guardianship is relinquished.
In most cases, a temporary guardian can petition for permanent guardianship if the parents remain unable to care for the child and the situation is unlikely to change.
Short-Term Temporary Guardianship
Parents may temporarily assign another adult guardianship over their child if they need this temporary assistance. A temporary guardianship may be arranged without a court order if:
- It is to last for 6 months or less; and
- The parents sign and notarize a temporary guardianship agreement, and
- If the child is 14 or older, the child will sign the agreement.
Only one parent’s signature is needed if the other parent is deceased, unknown, has no legal rights, or has had their parental rights terminated.
Guardianship vs. Power of Attorney
Under a power of attorney agreement, the principal designates an agent or attorney in fact to make decisions for them. A child’s parent or legal guardian may grant power of attorney to another person to make choices for their underage child on their behalf. This is known as a minor power of attorney.
A parent or legal guardian might assign power of attorney if they were going to be temporarily unavailable to parent the child, such as if they were:
- Seriously ill, but expected to recover
- Unavailable due to military deployment or a job assignment
- Sending the child to school overseas.
If you grant power of attorney, you decide what authority you are granting and to whom. It can be written and signed in an attorney’s office.
When granting guardianship, the clerk of the superior court decides who will be responsible for managing the child’s affairs. It’s not likely, particularly if you are represented by an experienced local attorney, but the court could deny the petitioning party and appoint someone else as a child’s guardian.