Guardianship In North Carolina
What is a Guardianship?
A guardianship is a legal relationship between a guardian and a ward. The guardian is the person or agency appointed by the court to make decisions on behalf of the ward (a person who is “incompetent,” or not able to make their own decisions).
If you are acting as a guardian, you may be responsible to manage the personal affairs of your ward, his or her property, or both. You may also have to make significant financial and medical decisions on your ward’s behalf.
What is the Purpose of a Guardianship?
The role of a guardian is to be a both a decision maker and an advocate for his or her ward. If you are a guardian, then you must act in your ward’s best interests. You’ll want to let your ward participate in the decision-making process to the extent possible, and give your ward every opportunity to exercise the rights that he or she can still comprehend. In fact, one of your biggest responsibilities is to protect your ward’s right to make his or her own decisions within reason.
One common scenario in which a guardianship can prove helpful is when an older person suffers from dementia, and is no longer able to make sound decisions on important matters. In that situation, a child, relative, or (more rarely) a close friend may be appointed as the older person’s guardian until he or she dies or becomes competent once again. This serves to protect the senior from both self-inflicted harm, as well as harm from unscrupulous individuals that may try to take advantage of the situation.
How Does the Court Determine Incompetence?
In order to legally establish that someone is “incompetent” and unable to make their own decisions, you must first file a written petition with the clerk of superior court. This petition contains a sworn statement that the information you are providing is true. As of this writing, you must pay a $120 filing fee to the court in order to process the petition, as well as a $30 fee for the sheriff’s office to serve the respondent (the person alleged to be incompetent) with the petition. (Those fees may later be waived if the court determines that the respondent is in need of a guardian.)
Once you file the petition with the court, the clerk will schedule a guardianship hearing. The respondent (and any attorneys or other representatives he or she has) will receive a copy of the hearing notice along with the petition. You are also required to mail copies of the petition and hearing notice to the respondent’s spouse and/or relatives.
You don’t have to be represented by a lawyer at the guardianship hearing. Still, it may be wise to at least consult with an experienced lawyer before starting this process. Your lawyer may be able to help you avoid some common pitfalls of guardianship proceedings.
What Financial Obligations Does the Guardian Assume?
It’s important to note that as a guardian, you don’t have to support your ward with your own resources (i.e., money, property, or other assets). When you become a guardian, you do not become liable for any outstanding debts that your ward has.
If the ward has an estate, you may be reimbursed for certain expenses during the time you act as a guardian. If you are acting as a guardian of the estate or a general guardian, you may even receive a commission from the ward’s estate specifically set by the clerk of court.
When Does a Guardianship End?
If you’re acting as a guardian, there are 4 basic ways your guardianship may end:
- You resign from your position
- Your ward becomes capable of making his or her own decisions once again
- The clerk of superior court removes you as guardian
- Your ward dies
What Alternatives to Guardianship Exist?
While a guardianship may be the best option in certain cases, there are several alternatives that are less invasive to the person who potentially needs care. In North Carolina, state law generally favors these alternative solutions, if they are viable. Here are some key alternatives to guardianship that you may want to consider:
- Durable Power of Attorney. A durable power of attorney (DPA) is a legal document that you can create ahead of time to determine who should assume authority for financial and personal decisions in the event that you become incapacitated in the future.
- Health Care Power of Attorney. This document is, in a sense, the medical equivalent of a DPA. It appoints a health care agent to make medical decisions for you in the event that you are unable to do so for yourself.
- Advance Directives. Advance directives are legally binding documents that outline your wishes with regard to medical treatment, especially if you lose your physical or mental capacity to express those wishes at some point in the future.
- Joint Bank Accounts. You may want to set up a joint bank account so that you and your spouse, your child, or another trusted relative can make deposits and withdrawals without having to go through the whole guardianship process. On the other hand, you may want to set up a joint account that requires both signatures for withdrawals, or has an option to send automatic payments for utilities, telecommunications, and other monthly bills.
- Home Health Care/Assisted Living. If a senior or someone with special needs could use help with daily activities like dressing, cooking, cleaning, and so forth, then you may want to consider hiring a home health care agency to provide assistance. There are also many assisted living facilities available to help care for the needs of older ones and those with special needs. Many of these communities offer a great deal of freedom and independence to their residents, while providing them needed support at the same time.
Experienced North Carolina Guardianship Attorneys
The guardianship process can be time-consuming and emotionally draining. Many people have found that an experienced, compassionate attorney can ease the load. If you have any questions about guardianship, reach out to our friendly team of experts at McCollum Law today.