Guardianship is a legal process in North Carolina where the court appoints a guardian to manage the personal care or finances of an adult who is incapacitated and cannot care for themselves. Understanding guardianship is crucial for families facing this difficult situation.
At Donaldson Law Firm, our experienced Wilmington guardianship attorney assists families throughout the guardianship process. We represent clients in all guardianship matters in New Hanover County and surrounding areas.
If you need help appointing a guardian or contesting an existing guardianship, contact our Wilmington law firm today for a consultation.
What is Guardianship? Are There Different Types of Guardianship?
Guardianship allows a court to transfer decision-making power from an incapacitated adult to another trusted person or entity. The incapacitated adult is referred to as the “ward,” while the appointed guardian acts on their behalf.
There are four types of guardianship in North Carolina:
- General Guardianship – The guardian has authority over both personal and financial decisions. This is the most comprehensive type of guardianship.
- Guardian of the Estate – The guardian only has authority over financial and legal decisions.
- Guardian of the Person – The guardian only has authority over health and personal care decisions.
- Guardian ad Litem – The guardian ad litem is only appointed for a particular legal proceeding, such as a court case. Their authority is limited to investigating the ward’s situation and making recommendations to the court.
When is Guardianship Necessary in North Carolina?
In North Carolina, the clerk of the court has the authority to appoint a guardian for an adult if the person is found to be “incompetent.”
This typically happens when an adult can no longer care for themselves due to:
- Mental illness or disability
- Traumatic brain injury
- Neurocognitive disorders like dementia or Alzheimer’s
- Other conditions causing severe physical or mental impairment
Without proper incapacity planning, guardianship may be the only option when an elderly parent or loved one becomes incapacitated and lacks legal documents like powers of attorney or living wills.
Guardianship is meant to protect incapacitated adults from exploitation and ensure their needs are met. However, it also involves taking away significant freedoms, so it should be a last resort.
What is the Role of a Guardian?
A court-appointed guardian is responsible for making personal and financial decisions in the best interest of the incapacitated adult, known as their ward.
Depending on the type of guardianship, the guardian may be authorized to:
- Make living arrangements like nursing home care
- Handle financial matters like paying bills or managing investments
- Make healthcare and treatment decisions
- Ensure the ward receives proper services and benefits
- Protect assets from fraud or exploitation
Guardians act as fiduciaries, meaning they must always place the ward’s interests above their own interests when making decisions on their behalf.
What are the steps to get legal guardianship in North Carolina?
The guardianship process involves several steps:
1. Petition the Clerk of Court
A guardianship case starts by filing a petition with the Clerk of Superior Court in the county where the ward resides. The proposed guardian must provide evidence the ward is incompetent and requires a substitute decision-maker.
Any interested person can file the petition, like a spouse, child, relative, or Adult Protective Services. The petition should recommend a guardian, although the court ultimately decides.
2. Notify the Proposed Ward
The petitioner must ensure the ward receives notice of the guardianship hearing. This gives them a chance to contest the guardian’s appointment if desired.
3. Guardian Ad Litem Investigation
The court will appoint an independent Guardian ad Litem (GAL) to assess the ward’s competence and best interests. The GAL meets with the ward, reviews medical records, consults with caregivers, and files a report with their recommendations.
4. Guardianship Hearing
At the hearing, the court will review evidence to determine the ward’s incapacity and need for guardianship. Witnesses like doctors may provide testimony. The ward has a right to attend, oppose the petition, and request limitations on the guardian’s powers.
If satisfied, the judge appoints an appropriate guardian and issues letters of appointment defining their duties.
How Can a Guardianship Attorney Help in North Carolina?
Navigating guardianship is complex, so working with an experienced guardianship lawyer is highly recommended. An attorney can:
- Advise if guardianship is truly needed or if alternatives like power of attorney exist
- Draft the guardianship petition and gather supporting evidence
- Represent the proposed guardian at the hearing
- Help select an appropriate guardian and propose limited powers
- Assist the ward if they oppose the guardianship
- Aid the guardian in fulfilling their required duties after the appointment
Having strong legal guidance provides critical help for families throughout the guardianship process. It can reduce costs and delays while ensuring the best interests of the ward.
Donaldson Law Firm Can Help with Guardianship
Coping with your loved one’s incapacity is hard enough without the confusion of guardianship. Our experienced estate planning attorney at Donaldson Law Firm helps North Carolina families navigate this complex process. Whether you need counseling about alternatives to guardianship or representation at the hearing, we make guardianship understandable and ensure your loved one receives proper care.
Contact our office in Wilmington today to schedule a consultation. We are here to answer your questions and provide skilled legal guidance. With our help, you can feel confident pursuing guardianship or finding the right solution for your family.
