What is “Guardianship?”

When a person lacks capacity to make legally binding decisions regarding his finances or health care, a Guardianship may be appropriate.

 Guardianship is a legal relationship in which a person is appointed by the Court to make decisions (financial and/or health care) and act on behalf of an incapacitated adult.

When is Guardianship Appropriate?

When a person who is 17.5 years old or older lacks the ability to understand the nature of what they own, and/or lacks the ability to comprehend the state of their health and the consequences of making health care decisions and decisions regarding personal matters.

If the person understands the above and the significance and consequences of giving their parent, or someone else, the ability to help them with their financial and health care matters, that person may be able to execute powers of attorney instead of being put through the guardianship process. 

What does the Guardianship process look like?

A person wanting a guardian to be appointed must file a Guardianship Petition and other necessary paperwork with the Clerk of Court, asking the Court to find that the supposedly incapacitated person is unable to manage their affairs and is therefore “incompetent” under the law. It is an old and ugly word, but it is the word that North Carolina law still uses.

The person filing the petition is called the “Petitioner,” and the supposedly incompetent person is called the “Respondent.” The Clerk will set a date for a hearing to be held, at which time the Petitioner will have to present evidence that the Respondent meets the legal definition of “incompetent” and requires a guardian. The Clerk will also appoint a Guardian Ad Litem at that time. The Guardian Ad Litem is an attorney who will act as the eyes and ears of the Court. They will meet with the Respondent, interview them, look at medical records and other evidence and report what they find to the Clerk. The Guardian Ad Litem will also give the Clerk their opinion as to whether or not the Respondent is incompetent to manage their affairs based on the evidence, and tell the Clerk who they think should be guardian if the Clerk finds the Respondent to be incompetent.

If at the hearing the Clerk determines that the person is unable to manage their affairs, they will then use the evidence presented to appoint a guardian. Often, people fight over who should be appointed guardian. When divorced parents are at odds, or children of a parent with dementia feel the need to get involved, things can get complex quickly.

A good attorney will first help you determine whether guardianship can be avoided.

Perhaps the person in question is capable of signing powers of attorney. If guardianship is unavoidable, your attorney will help you gather and present evidence that will establish that your loved one needs a guardian. Your attorney can also help present you favorably, so that you may be appointed guardian.