Guardianship Procedures

North Dakota Guardianship Statute

North Dakota Century Code 30.1-26-01 to 29-32

Guardian: An individual or corporation appointed by the court to make decisions, exercise specific rights, protect property, and serve a an advocate for an individual who can not perform these duties.
Petition: Legal document that is completed to make application for the appointment of a guardian for an alleged incapacitated person.
Petitioner: Family member or interested party who petitions the Court to appoint a guardian to handle the affairs of the proposed ward.
Petitioning Attorney: The attorney who represents the petitioner, fills out the petition, and presents evidence of incapacitation to the Court.
Guardian Ad Litem: A person, usually an attorney, appointed by the Court to make an impartial inquiry into the guardianship petition and report to the Court the ward's wishes and what is in his/her best interest.
Court Visitor: A Court appointed Visitor (Licensed Social Worker or Nurse) who interviews the proposed ward and hears his/her views on guardianship. The Visitor explains alternative plans for guardianship, contacts family members and the prospective guardian and reports to the Court the need for a guardian.
Incapacitated Person: Any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, or other cause to the extend that the person lacks sufficient understanding or capacity to make or communicate responsible decisions.
Ward: A person for whom a guardian has been appointed. Other names for ward are Conservatee, Disabled Person, Protected Person, and Incapacitated Person.
Court Order: States the level of incapacity of the ward and who is best suited to be the guardian.
Letters of Guardianship: An appointment as guardian signed by the presiding judge and the appointed guardian specifying levels and areas of authority.

Types of Guardianship

Full Guardian: The Court appointment gives the guardian all the delegable rights and powers of the ward.
Limited Guardian: A limited guardian is given authority to make decisions only in certain areas of the ward's life. The Court's orders or letters of appointment will identify these areas.
Temporary or Emergency Guardian: Authority is temporary and only appointed in an emergency usually for no more than 90 days.

Responsibilities of the Guardian

Self Determination: The guardian should provide the ward with every opportunity to exercise those individual rights, which the ward might be capable of exercising as they relate to the care of the ward's person.
Best Interest: The course of action that maximizes what is best for a ward and that includes consideration of the least intrusive, most normalizing, and least restrictive course of action possible given the needs of the ward.
Residential: The guardian will usually determine where the ward lives. The guardian, however, should always involve the ward as much as possible. The ward should be allowed in his or her usual residence as long as there are sufficient assets and assistance to keep the ward safely in the place of residence. The guardian is also responsible for hiring care attendants and applying for entitlement programs such as Medicaid, SSI, or housing programs.
Health Care:
- Medical Decision Making: Based on "Informed Consent" allowing medical procedures to be performed based on a full disclosure of facts needed to make the decision intelligently; i.e., knowledge of risks involved, alternatives, etc.
- Advance Directives: Living will; power of attorney for health care of other instructions that the ward would make based on the ward's previously expressed and/or current wishes.
- Code Levels: Determination of medical procedures that are authorized following a traumatic incident such as a stroke, heart attack, or serious brain injury.
- End of Life Decisions: Determination to continue or discontinue life support equipment (see Advance Directives, Substituted Judgment, Informed Consent).
Programs and Activities: The guardian has a duty to ensure that appropriate programs and activities are provided for the ward at the level that the ward can participate.
Finances:
- Inventory - The inventory should outline all of the assets of the ward on the date the guardianship was established.
- Accounting - The accounting should show all receipts and expenditures, investment transactions and property on hand at the beginning and ending of an account period.
- Prudent Person Rule - An investment standard that considers the reasonableness of an investment based on whether a prudent person of discretion and intelligence, who is seeking reasonable income and preservation of capital, would buy.
Legal Matters: The Guardian has the authority to enter into contracts, buy and sell assets of the ward, and make other legal decisions on behalf of the ward as specified by the Court order. (Note: It is prudent to obtain Court approval prior to selling real property).
Burial Arrangements: It is advisable after consultation with the ward and family members that the guardian make and pay for burial arrangements in advance with the ward's funds or as the ward's funds become available. If the ward is receiving Medical Assistance or SSI the guardian should make the funeral home director aware before starting any advance burial arrangements due to regulations affecting burial accounts.
Court Reports: The Guardian is responsible to complete and inventory within 90 days of appointment and submit reports to the court on the status of the ward and financial accounting annually.

Alternatives to Guardianship

Representative Payee, Durable Power of Attorney for Finances, Durable Power of Attorney for Health Care, Trusts

Best Protection for the Guardian

Know the state laws that govern guardianship and know the limits of your authority and duties.

Clarify any questions that you have with your attorney.
Document your activities on behalf of your ward, so that you have a record in case your actions are ever questioned.
Keep your ward's funds separate from yours.
Never borrow any money from the ward's estate.
Avoid any appearance of a conflict of interest.
Always meet the reporting requirements of the court.
Know your ward and use your common sense.