Minor Guardianship FAQ

A guardian may be appointed for a minor under certain circumstances. Minors, because they are legally incompetent to transact business or give consent for most purposes, need responsible, accountable adults to be responsible for their personal welfare, for personal decision-making, and to handle property or benefits to which they are entitled.

The Clerk of the Superior Court only has jurisdiction to appoint a Guardian of the Person for any minor that has no living parents or other guardians. The Clerk of the Superior Court cannot appoint a Guardian of the Person for a minor if that minor's parents are still living, regardless of whether the parents’ consent. In this event, the District Court must decide custody.

A court-appointed legal guardian for a minor may be necessary where the minor will inherit property or receive a settlement arising from an accident. A guardian must be appointed to take charge of the property, protect it, and distribute it for the minor's best interest. This type of guardian is called a Guardian of the Estate.

Parents may nominate a legal guardian for their child by making the nomination in a properly drafted Will– while this nomination will be given significant weight by the Clerk, another guardian may be appointed for good cause.

NOTE: You may pick up the necessary forms for the appointment of a guardian for a minor from the Estates Division, located on the 2nd floor Rm# 2300 of the Durham County Courthouse.

A court may appoint a guardian of the estate for a minor (under age 18), pursuant to Art. 6 in G.S. 35A, who is to receive property, such as an inheritance, life insurance proceeds, or an award from a lawsuit. A court may appoint a guardian of the person or a general guardian if both of the child’s parents are either deceased or have had their parental rights terminated in a court proceeding.

An application for the appointment of a minor may be initiated by completing this form under oath and filing it in the estates department with the clerk of superior court in the county where the child lives. Basic identifying information about the child is required as well as information about the child’s parents and others with an interest in the guardianship, such as relatives or custodians, and information about the child’s assets.

The clerk of court will set a date for a hearing on the guardianship once the application is filed. Copies of the application and a notice of hearing must be served on any parent, guardian or legal custodian of the minor other than the applicant, and on any other person the clerk may direct, including the child. Parties may waive their right to notice of the hearing.

Possibly. The clerk of court may choose to appoint a guardian ad litem, depending on the circumstances. The guardian ad litem will visit the child, learn about the family, and make a recommendation to the clerk.

The hearing may be held in a courtroom, a conference room, or an office. The clerk of superior court or an assistant clerk will conduct the hearing. The applicant will be allowed to testify under oath and present evidence, including witnesses and documents. Other interested parties, such as family members who dispute the guardianship, may be allowed to testify and present evidence. If a guardian ad litem was appointed, he or she will make a recommendation to the clerk.

Notice of appeal must be filed within 10 days of entry of the clerk’s written order. An appeal hearing is not a new trial, but allows a superior court judge to review whether the record shows any error by the clerk.

The appointed guardian must take an oath to uphold his or her duties. Guardians who will have control over the ward’s assets and property, and some non-resident guardians, must file a bond approved by the clerk before receiving their authority. Certain individuals may be disqualified by statute to serve.

If the clerk of court does not provide for more limited duties through a limited guardianship, a guardian of the person has broad responsibilities for the care and custody, and maintenance of the ward. Those responsibilities may include providing for the ward’s everyday needs, establishing the ward’s home, maintaining the ward’s personal property such as clothing or vehicles, and arranging for the ward’s education, employment or rehabilitation. The guardian of the person may consent to medical or psychological treatment for the ward, unless the ward previously appointed someone else to make these decisions through a health care power of attorney. The clerk shall consider whether a limited guardianship is appropriate. You can view all the powers and duties of a guardian of the person here. You can find additional information prepared by the North Carolina Administrative Office of the Courts here.

All public guardians are required to file status reports under oath or affirmation with the court, and the clerk of court may require these reports from all guardians. Status reports are not available to the general public. Information required in status reports can be viewed here.

A guardian of the estate or general guardian must file an inventory of the ward’s assets within 3 months after qualification and must file an annual account each year regarding the status of the ward’s property and money received and paid.

A general guardian has all the duties and accounting requirements of both a guardian of the person and a guardian of the estate.

A guardian of the estate or general guardian must file a verified petition with the court for approval to sell real property. This is a complicated process that requires court approval. An attorney can assist with this process.