Guardianship Guidelines {MCSC-ES-017}

GUARDIANSHIP GUIDELINES Guardianship File No.:_______________ Date of Appointment:________________ The laws governing Guardianships are complicated and they place a heavy responsibility upon the Guardian. Briefly, there are several things which you are required to do in the handling of the Guardianship. You have been appointed by the Clerk of Superior Court; you have taken an oath; you have given a bond to insure your proper accounting for all the property and funds which may come into your hands as Guardian. INVESTMENTS The Guardian is not simply a conservator of property. He has the duty to invest the portion of the Guardianship funds which are not needed for the maintenance and support of the Ward. North Carolina requires the Guardian to invest the funds within a reasonable time. [G. S. 35A-1251 and G. S. 35A-1252] (1) Investments shall be in the name of the Ward by the Guardian. EXAMPLE: John H. Smith, Minor by Jane E. Smith, Guardian. (At no time can funds be invested under a custodian.) (2) At the time accounts are required to be filed, the Clerk must require the Guardian to exhibit all investments and bank statements showing cash balance. (You must use an organization that will give you returned canceled checks.) (3) Separate bank accounts should be established for each Guardianship in order to provide a clear record of transactions, interest accrued, rents, etc. (At no time should you deposit any funds other than the Guardianship funds into these accounts.) (4) It is at the request of the Court that all investments be made with an accredited banking institution that would insure all investments. A failure to invest the funds within a reasonable time will make the Guardian liable for any amount of income which would have been earned had he made a timely investment. MANAGEMENT OF WARDS ESTATE (1) Every Guardian shall take possession, for the use of the Ward, of all his estate. [G. S. 35A-1253] (2) With the approval of the Clerk of Superior Court, the Guardian may purchase or sale assets of the Ward. To avoid complications, consult your attorney frequently, as this is a proper function for an attorney. The law allows you to pay a reasonable attorneys fee from the funds of the Guardianship. Disbursement of attorneys fees must first be approved by the Clerk of Superior Court. MCSC-ES-017 11/96 1<<<<<<<<<********>>>>>>>>>>>>> 2RESPONSIBLITY TO USE WARDS FUNDS FOR WARDS NEEDS AND KEEP RECORD OF EXPENDITURES The Clerk must order what yearly sums of money or other provisions shall be allowed for the support and education of the Ward, or for the maintenance of the incompetent, and must prescribe the time and manner of paying the same; but such allowance may, upon application and satisfactory proof, be reduced or enlarged, or otherwise modified, as the Wards condition in life and the kind and value of his estate may require. All payments made by the Guardian of the Estate shall be deemed just disbursements and be allowed in the settlement of his accounts. Consult you attorney to prepare a Petition and Order for the use of the Wards funds. The law allows you to pay a reasonable attorneys fee from the funds of the Guardianship. Disbursement of attorneys fees must first be approved by the Clerk of Superior Court. [G. S. 35A-1251(12) and G. S. 35A-1252(9)] (1) MINORS -- The Clerk must authorize the Guardian to disburse the moneys held in such sum or sums and at such time or times as in his judgment is the best interest of the Ward, except the Clerk must first determine that the parents or other persons responsible for the childs support and maintenance are financially unable to provide the necessities for such child, and also that the child is in need of maintenance and support or other necessities, including, when appropriate, education. (2) INCOMPETENT AD ULT -- The Clerk, upon finding of fact that is in the best interest of the incompetent adult must authorize the Guardian to disburse the money held in such sum or sums and at such time or times as in his judgment in the best interest of the incompetent for his support and maintenance. AT NO TIME SHOULD THE GUARDIAN USE ANY FUNDS OF THE MINOR OR INCOMPETENT BEFORE HE HAS THE AUTHORITY OF THE COURT When the Guardian uses funds (with the authority of the Clerk) for the Wards estate to purchase items, care, services, etc., needed by the Ward, a record should be kept of such expenditures. The record should include an itemized listing of expenditures. The receipts or paid vouchers showing that the moneys disbursed were used for the exclusive use and benefit of the minor or incompetent. RESPONSIBILITY TO FILE ACCOUNTS WITH THE CLERK (1) Accounting within three (3) months after appointment: Every Guardian within three (3) months after his appointment, shall file an accurate inventory with the Clerks Office, giving full description and accurate values of all personal and real property. [G. S. 35A-1261] Form AOC-E-505 (2) Annual Account: Every Guardian shall file with the Clerks Office, an Annual Account, under oath, of the amount of property received by him or invested by him, and the manner and nature of such investments, and his receipts and disbursements for the past year in the form of debit and credit. The Guardian shall produce vouchers for all payments or verified proof for all payments in lieu of vouchers. The Clerk of Superior Court may examine under oath the Guardian or anyone else concerning the receipts, disbursements, or any other matter concerning the estate. The first Annual MCSC-ES-017 11/96 2<<<<<<<<<********>>>>>>>>>>>>> 3 Account must be filed within thirty (30) days of the expiration of one year from his date of appointment. [G. S. 35A-1264] Form AOC-E-506 (3) Final Account: A Guardian shall be required to file a Final Account at any time after sixty (60) days from the end of the Guardianship. The Final Account may be filed voluntarily at any time. [G. S. 35A-1266] Form AOC-E-506 WHAT ACCOUNTS MUST CONTAIN Accounts filed with the Clerk of Superior Court must be signed under oath and shall contain: (1) The period which the Account covers and whether it is an Annual or a Final Accounting. (2) Receipts: The amount and value of the property of the Guardianship, the amount of income and additional property received during the period being accounted for, and all gains from the sale of any property. (3) Disbursements: All payments, charges, losses. You will need canceled checks or verified proof for all payments in lieu of vou