The creation of a guardianship forges strong bonds between two people. A guardian has broad powers to handle another person’s financial affairs, control their property, and even make life-altering medical decisions. As such, it is essential that your guardian understands your wishes and acts in your best interest.
However, situations may arise where a guardian no longer wants to serve in that capacity. When this occurs, the guardian may petition the court for removal from the role. Unfortunately, this may leave a person without a guardian for a period of time or result in the appointment of a successor who is hesitant to take the job.
If you are facing this scenario, consult a seasoned attorney for more information about the guardianship process and what may happen if a party no longer wishes to serve as a guardian.
Only a local court has the ability to grant powers of guardianship. To obtain legal approval, a person who wishes to serve as a subject’s guardian must take a petition to the court. The court will then evaluate the ability of the subject to care for their own needs and will appoint a guardian if they find the subject incompetent.
Generally, any party can apply to be a guardian. However, this application must include information about the party’s desire to serve in the role and their relationship to the subject, if any. If a person wishes for a specific party to serve as their guardian should they become incapacitated, a document such as a Living Will may provide relevant information for the court’s decision on guardianship.
In some cases, guardians may find that the role is no longer feasible or that the responsibility is overwhelming. State law provides a procedure for requesting removal from a guardianship relationship.
North Carolina General Statutes § 35A-1292 says that a guardian may file a motion with the clerk of the court requesting resignation from the role. Ideally, this request will include a full accounting of all the guardian’s actions for the subject’s care up to the current date. If the clerk believes that the guardian has satisfactorily performed their duties up to this point, they will grant an order terminating the relationship. The clerk may also appoint a successor guardian using the same processes as the creation of the first guardianship.
The idea behind a guardianship is that a willing party takes responsibility for the well-being of another due to illness or infirmity. Only a local court has the power to create a guardianship, but parties may pre-nominate potential candidates through Living Wills. However, this is a voluntary role that comes with substantial powers and responsibilities. It is not unusual for a guardian to become overwhelmed.
The law says that a guardian may petition the court for removal from this position. As long as the guardian can show that they have acted in good faith, the court will accept this resignation. This will result in the court appointing a new guardian. Speak with a knowledgeable lawyer for further explanation of the role of guardians and what happens if they reject this responsibility.
Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.
Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.