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Appointed Guardianship in North Dakota

I Have Been Appointed Guardian, Now What?

/ Estate Planning

So you have gone through the process of becoming a guardian in North Dakota. Like most people attempting to become guardian; however, once the court has finished examining the many documents you have submitted, you have little guidance on what to do next. Hopefully, this article will help you carry out your duties as guardian.

1. Get it in a Certified Writing.

Increasingly, people are becoming less trusting of a person who says they have the power to make decisions, especially financial ones, for another individual. What I always tell my clients is to get a certified copy of the court’s order appointing you guardian and the letters of guardianship. These are the two most important documents you have in a guardianship. Once you show anyone a certified copy of these two documents, they should immediately become more trusting. The clerks at your courthouse will know exactly what you are asking for when you request a certified copy, and the cost is generally $10.00 per copy, well worth the cost to allow you to take care of your responsibilities as guardian.

2. Record Everything.

As you may remember from your court hearing, the judge likely set a date approximately a year later for when your first report is due. In this report, you will describe the Ward’s condition, any changes to the Ward’s residence, medical treatment, any expenses incurred or income affecting the Ward, and any sale or transfer of the Ward’s property. Finally, you must include a statement concerning whether you believe the guardianship should continue. At this stage, I encourage all of my clients to keep a running log of the day-to-day issues with the Ward.

For example, any changes in the Ward’s medical condition are much easier to understand when there are multiple entries describing the Ward’s improvements or declines. Next, any expense you take care of for the Ward should be recorded. It happens all the time that a family member will become guardian, will be paying the Ward’s expenses out of their own pocket, and does not keep a record of the expenses. While paying the Ward’s way is very nice thing to do, and you should be complimented for going over-and-above the call of duty, you need to keep a record of this. First,  you are required to under statute. Second, as guardian you are taking on the duty to ensure the Ward is not taken advantage of. This duty includes ensuring that any costs the Ward incurs are not becoming higher and higher without explanation. By keeping a log, for example of the Ward’s rent costs, you can ensure he/she is paying a consistent amount. Finally, keeping a log of what you have spent on or for the Ward will help prevent any future challenges to you being guardian. If challengers can see you have spent roughly the same amount, for example on the Ward’s rent, year after year, this will foreclose any thought of improper use of power.

3. Notify Everyone.

Hand-in-hand with steps one and two, you should provide notice of your guardianship powers to everyone involved with the Ward, from the Ward’s bank to the Ward’s creditors. This can usually be accomplished by a simple phone call or email. By providing notice to these people, you can have any bills, invoices, or letters intended to reach the Ward sent to you to be addressed most efficiently. Also, this notice provides everyone with the opportunity to understand that if a bill was perhaps overdue, it was likely due to the time it took for the guardianship to take place.

4. Act in the Best Interests of the Ward.

While this one seems like the most obvious, it can also be the most tricky. When acting as a guardian in North Dakota, a guardian is held to act under the prudent person standard or rule. This standard essentially requires you as guardian to act in a similar manner as a reasonably prudent average guardian would. Nothing like using the terms in the word to define it right? In any event, a few simple rules to follow are: 1) do not gift yourself the Ward’s property; 2) do not sell the Ward’s property to yourself or family members (or at least seek out an attorney for the proper way to do this, if possible); and 3) record every transaction involving the Ward (See Number 2 above).

5. Inform the Ward.

Just because you have been named guardian does not mean the Ward has been stripped of all rights. As a guardian you are still required to keep the Ward reasonably informed of everything from the court’s original order appointing you guardian to the day-to-day decisions you must make concerning the Ward’s care. What this means is you should get a gauge of how involved the Ward can be in his/her own decisions. While I cannot give you a good gauge on this, the visitor and physician’s report should indicate the extent of the Ward’s abilities. Try to heed the advice of both the visitor and physician. They tend to be very good at what they do.

6. Five Years Later Put it All Together.

So, you religiously read our blog articles. You have followed the previous five steps. This is where it will come together. Every five years, the court that appointed you guardian will examine whether a guardianship is still appropriate and whether you are an appropriate guardian. If you have performed the previous steps, it will be pretty simple to explain whether a guardianship is still required and how good of a job you have done as a guardian. As far as the five-year procedure, the court will provide you notice your guardianship term is about to end and will send you some paperwork to complete. While you can complete this paperwork without an attorney, the process is much more streamlined with representation.

One huge caveat: this blog is for educational purposes only. While we try to provide as broad a discussion as possible, and the tips here may not be right for every situation. We highly encourage you to seek legal representation for any guardianship issues you may have. If you are seeking a guardianship, contesting a guardianship, or have questions concerning the guardian’s ongoing duties or regarding guardianships over minors, call or email Jesse at 701-297-2890 or jesse.maier@swlattorneys.comWe can help you out.