§ 35A-1251. Guardian's powers in administering incompetent ward's estate.
§ 35A‑1251. Guardian'spowers in administering incompetent ward's estate.
In the case of an incompetentward, a general guardian or guardian of the estate has the power to perform ina reasonable and prudent manner every act that a reasonable and prudent personwould perform incident to the collection, preservation, management, and use ofthe ward's estate to accomplish the desired result of administering the ward'sestate legally and in the ward's best interest, including but not limited tothe following specific powers:
(1) To take possession,for the ward's use, of all the ward's estate, as defined in G.S. 35A‑1202(5).
(2) To receive assetsdue the ward from any source.
(3) To maintain anyappropriate action or proceeding to recover possession of any of the ward'sproperty, to determine the title thereto, or to recover damages for any injurydone to any of the ward's property; also, to compromise, adjust, arbitrate, sueon or defend, abandon, or otherwise deal with and settle any other claims infavor of or against the ward.
(4) To completeperformance of contracts entered into by the ward that continue as obligationsof the ward or his estate, or to refuse to complete the contracts, as theguardian determines to be in the ward's best interests, taking into account anycause of action that might be maintained against the ward for failure tocomplete the contract.
(5) To abandon orrelinquish all rights in any property when, in the guardian's opinion, actingreasonably and in good faith, it is valueless, or is so encumbered or isotherwise in a condition that it is of no benefit or value to the ward or hisestate.
(5a) To renounce anyinterest in property as provided in Chapter 31B of the General Statutes, or asotherwise allowed by law.
(6) To vote shares ofstock or other securities in person or by general or limited proxy, and to paysums chargeable or accruing against or on account of securities owned by theward.
(7) To insure the ward'sassets against damage or loss, at the expense of the ward's estate.
(8) To pay the ward'sdebts and obligations that were incurred prior to the date of adjudication ofincompetence or appointment of a guardian when the debt or obligation wasincurred for necessary living expenses or taxes; or when the debt or obligationinvolves a specific lien on real or personal property, if the ward has anequity in the property on which there is a specific lien; or when the guardianis convinced that payment of the debt or obligation is in the best interest ofthe ward or his estate.
(9) To renew the ward'sobligations for the payment of money. The guardian's execution of anyobligation for the payment of money pursuant to this subsection shall not beheld or construed to be binding on the guardian personally.
(10) To pay taxes,assessments, and other expenses incident to the collection, care,administration, and protection of the ward's estate.
(11) To sell or exercisestock subscription or conversion rights; consent, directly or through acommittee or other agent, to the reorganization, consolidation, merger,dissolution, or liquidation of a corporation or other business enterprise.
(12) To expend estateincome on the ward's behalf and to petition the court for prior approval ofexpenditures from estate principal.
(13) To pay from the ward'sestate necessary expenses of administering the ward's estate.
(14) To employ persons,including attorneys, auditors, investment advisors, appraisers, or agents toadvise or assist him in the performance of his duties as guardian.
(15) To continue any businessor venture or farming operation in which the ward was engaged, where thatcontinuation is reasonably necessary or desirable to preserve the value,including goodwill, of the ward's interest in the business.
(16) To acquire and retainevery kind of property and every kind of investment, including specifically,but without in any way limiting the generality of the foregoing, bonds,debentures, and other corporate or governmental obligations; stocks, preferredor common; real estate mortgages; shares in building and loan associations orsavings and loan associations; annual premium or single premium life,endowment, or annuity contracts; and securities of any management typeinvestment company or investment trust registered under the Federal InvestmentCompany Act of 1940, as from time to time amended.
(17) a. Withouta court order to lease any of the ward's real estate for a term of not morethan three years, or to sell, lease or exchange any of the ward's personalproperty including securities, provided that the aggregate value of all itemsof the ward's tangible personal property sold without court order shall notexceed five thousand dollars ($5,000) per accounting period. When any item ofthe ward's tangible personal property has a value which when increased by thevalue of all other tangible personal property previously sold in the estatewithout a court order would exceed five thousand dollars ($5,000) in thecurrent accounting period, a guardian may sell the item only as provided insubdivision (17)b.
b. A guardian who isrequired by subdivision (17)a to do so shall, and any other guardian who sodesires may, by motion in the cause, request the court to issue him an order tolease any of the ward's real estate or to sell any item or items of the ward'spersonal property. Notice of the motion and of the date, time and place of ahearing thereon shall be served, as provided in G.S. 1A‑1, Rule 5, Rulesof Civil Procedure, upon all parties of record and upon any other persons theclerk may direct, and the court may issue the order after conducting a hearingand upon any conditions that the court may require; provided that:
1. A sale, lease, orexchange under this subdivision may not be subject to Article 29A of Chapter 1of the General Statutes unless the order so requires; and
2. The power granted inthis subdivision shall not affect the power of the guardian to petition thecourt for prior approval of expenditures from estate principal undersubdivision (12) of this section.
(18) To foreclose, as anincident to the collection of any bond, note or other obligation, any mortgage,deed or trust, or other lien securing the bond, note or other obligation, andto bid in the property at a foreclosure sale, or to acquire the property deedfrom the mortgagor or obligor without foreclosure; and to retain the propertyso bid in or taken over without foreclosure.
(19) To borrow money forany periods of time and upon the terms and conditions as to rates, maturities,renewals, and security as the guardian shall deem advisable, including thepower of a corporate guardian to borrow from its own banking department, forthe purpose of paying debts, taxes, and other claims against the ward, and tomortgage, pledge, or otherwise encumber that portion of the ward's estate as maybe required to secure the loan or loans; provided, in respect to the borrowingof money on the security of the ward's real property, Subchapter III of thisChapter is controlling.
(20) To execute anddeliver all instruments that will accomplish or facilitate the exercise of thepowers vested in the guardian.
(21) To expend estateincome for the support, maintenance, and education of the ward's minorchildren, spouse, and dependents, and to petition the court for prior approvalof expenditures from estate principal for these purposes; provided, the clerk,in the original order appointing the guardian or a subsequent order, mayrequire that the expenditures from estate income also be approved in advance.In determining whether and in what amount to make or approve theseexpenditures, the guardian or clerk shall take into account the ward's legalobligations to his minor children, spouse, and dependents; the sufficiency ofthe ward's estate to meet the ward's needs; the needs and resources of theward's minor children, spouse, and dependents; and the ward's conduct orexpressed wishes, prior to becoming incompetent, in regard to the support ofthese persons.
(22) To transfer to thespouse of the ward those amounts authorized for transfer to the spouse pursuantto 42 United States Code § 1396r‑5.
(23) To create a trust forthe benefit of the ward pursuant to 42 United States Code § 1396p(d)(4),provided that all amounts remaining in the trust upon the death of the ward,other than those amounts which must be paid to a state government and thoseamounts retained by a nonprofit association as set forth in 42 United StatesCode § 1396p(d)(4)(C), are to be paid to the estate of the ward.
(24) To petition the courtfor approval of the exercise of any of the following powers with respect to arevocable trust that the ward, if competent, could exercise as settlor of therevocable trust:
a. Revocation of thetrust.
b. Amendment of thetrust.
c. Additions to thetrust.
d. Direction to disposeof property of the trust.
e. The creation of thetrust, notwithstanding the provisions of G.S. 36C‑4‑402(a)(1) and(2).
Theexercise of the powers described in this subdivision (i) shall not alter thedesignation of beneficiaries to receive property on the ward's death under thatward's existing estate plan; and (ii) shall be subject to the provisions ofArticles 17, 18, and 19 of this Chapter concerning gifts. (1987, c. 550, s. 1; 1989,c. 473, ss. 3, 13; 1995, c. 235, ss. 6, 8; 1999‑270, s. 9; 2004‑199,s. 15; 2007‑106, s. 52; 2008‑87, s. 1.)