Wards of the State: A Closer Look at Guardianship in North Carolina

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In today’s world, the term “conservatorship” has become synonymous with the “Free Britney” movement.  “Free Britney” emerged in 2009, one year after a California court determined that pop singer Britney Spears could no longer effectively take care of herself or her finances.  As a result, the court appointed her father as the sole manager of his daughter’s estate.  The movement has recently gained traction with the New York Times documentary “Framing Britney Spears,” which analyzes Spears’ legal battle against her father.  Other studios have also joined in on the commentary, including Netflix, with their release of “I Care a Lot,” which centers around conservator fraud. The added scrutiny surrounding conservatorships has led to many questioning whether the system is truly effective or merely ripe for manipulation.

This article takes a deeper look into the laws governing conservatorship in North Carolina and whether the current system affords any benefits to those under the state’s care.

The Legal Framework

Generally, a conservatorship is a legal relationship between someone appointed by the court to act on behalf of another.  This individual lacks the requisite capacity to make decisions regarding their personal life or property.  Commonly, the person who is appointed a guardian is known as a “ward.”  Each state is responsible for the laws that govern conservatorships and any oversight or regulation in place.  North Carolina refers to this system as guardianship.

To form a guardianship a petition must be filed with the court alleging that an individual cannot effectively take care of themselves or their affairs.  Most often, a guardian petitions are filed when elderly individuals become mentally incapacitated and do not have a power of attorney in place.  Any person or agency may file a petition and they are responsible for presenting the evidence of incapacity to the court.  The county clerk of court must then decide at a hearing by clear, cogent, and convincing evidence that the individual lacks the requisite capacity over their persons or estate.

Depending on the ward’s capacity, there are three different types of guardianships available in North Carolina: (i) Guardians of the Person, (ii) Guardians of the Estate, and (iii) General Guardians.  Guardians of the Person are responsible for all rights related to the individual ward, including healthcare decisions, education, and employment.  Guardians of the Estate are granted financial responsibility and may take over any real property and financial accounts.  General Guardians combine responsibilities.

There are a few limited ways to terminate a guardianship. A guardianship automatically concludes at the ward’s death.  Another option allows for any interested party to file a motion for the restoration of competency.  Upon filing, the interested party must be prepared to show by a preponderance of the evidence that the ward no longer requires a guardian.  This includes the ability to handle all of their personal affairs and the ability to communicate all important decisions regarding themselves, their family, and their property.  If a party is unhappy with the court’s decision, there is an option to appeal, but the guardianship will remain in place pending appeal.

Potential Benefits

Today, most states regulate the role of guardians through statutes.  In North Carolina, guardianship is considered to be an extreme solution. NC G.S. 35A-1201(a)(4) provides that a guardian should only be appointed when “it is clear that a guardian will give the individual a fuller capacity for exercising his rights.”  The state favors alternatives that include: Power of Attorney, Health Care Power of Attorney, Comprehensive Crisis Planning, or adopting a Trust or Living Will.  Most alternatives center around providing support for decision-making and assistance with finances rather than a court-appointed guardian.  However, in instances where an individual is incapacitated to the point that an appointed guardian would actually afford more protection, a guardian may be appointed.

That is not to say that there are no limits to the relationship.  While it is easy to assume that guardianship is inherently manipulative, the reality is more complex.   In North Carolina, a guardian owes a fiduciary duty to their ward to put the ward’s interests ahead of their own. NC G.S. 35A-1253 requires that guardians observe a standard of judgment that an ordinarily prudent person would observe in managing the ward’s property.  If a guardian does not adhere to their fiduciary obligations, they may be removed and find themselves subject to civil liability.

In truth, guardianships are a necessary reality for many individuals in North Carolina. Most often, the relationship between ward and guardian is positive and protects those who have lost incapacity.  However, there are still instances of abuse.  Given that guardianship effectively limits the ward’s basic rights, the state must ensure the best practices are in place to protect individuals from exploitation.

A Call for Reform

The United States is on track to double its elderly population within the next 40 years. Currently, most wards are members of the elderly population, and so it is likely the number of individuals entering into guardianship will also climb.  We must take the necessary steps now to minimize any exploitation occurring within our state’s system before it is too late.

Nina Kohn is a Syracuse law professor and one of the leading experts in the field of guardianship.  In her 2018 hearing before the Senate, Professor Kohn identifies that some of the main problems with guardianships are the overreaching power granted to guardians and the lack of oversight and regulation to curb abuse.  Some of the state-implemented solutions have included better monitoring, incentivizing limited guardianships, clear guidance, and ensuring that those that take advantage of the system do not get rewarded for their actions.  Professor Kohn goes on to press the importance of a person-centered approach that is regulated in a way that aims for a restoration of rights where feasible.

Many of these reforms get addressed in the model statute for adult guardianship, The Uniform Guardianship and Protective Proceedings Act (UGPAA).  The UGPAA recommends several policies that focus on ensuring due process and imposing limited guardianships where possible.  These reforms include a detailed evaluation of the ward to determine competency, ensuring the ward is present at all hearings, and use limited guardianships to allow the ward to maintain any rights they are capable of exercising. In a 2016 case study, states that enacted the UGPAA or implemented similar reforms saw success in guardianship practice.  The less restrictive alternatives used resulted in a more holistic approach to guardianship focused on the ward’s capacity and not the guardian’s requests.

North Carolina Reform

Currently, North Carolina is not a state that has adopted the UGPAA. North Carolina has some requirements in place that intend to protect the ward.  For one, North Carolina requires guardians to submit to regular accounting and requires court approval of any gifts made by the guardian in an effort to prevent mismanagement of the ward’s estate.  Further, the implementation of a three-tiered guardianship system encourages a more limited guardianship when feasible.  However, given the lack of public records and data on North Carolina guardianships, it is impossible to see what gaps are being exploited.