Guardianship and Incompetency
Guardianship is sometimes necessary when a person has become unable to manage their own affairs. Our Guardianship Lawyers help people all the time with this important task.
Powers of Attorney and Guardianship
It is a great idea to execute a power of attorney and other documents related to personal, financial, and medical matters well in advance of an actual need for such documents to protect and make sure your wishes are followed in the event you are not able to attend to your affairs. We help our clients in Durham, Raleigh, Sanford, and elsewhere in North Carolina with these documents.
You have to be competent to execute a power of attorney, whether it be a financial power of attorney, medical power of attorney, or a durable general power of attorney. If you become incompetent down the road and you do not have a durable power of attorney, it could be necessary for an incompetency petition to be filed so that the Court can be appointed a guardian to manage your affairs. Even if you do have a durable power of attorney, you may still need to be declared incompetent if you are mismanaging your own affairs or not complying with medical treatment necessary to preserve your life. However, a power of attorney can act to limit the need for a Guardianship or if a Guardianship is necessary, the Durable Power of Attorney may act to limit the ongoing costs of a guardianship.
Appointing a Guardian for Someone in North Carolina
In order to appoint a guardian, the Clerk has to first figure out whether someone is competent or not. Incompetency is a legal determination and requires either the Clerk or a jury. A Guardian ad Litem is a person that is disinterested that can advocate for the person being declared incompetent and must report to the Clerk what is in the person’s best interest.
Evidence such as medical affidavits may be necessary to determine whether one is competent to handle affairs. A determination of incompetency requires two findings: (1) the person lacks sufficient capacity to manage his or her affairs or to make or communicate important decisions regarding his or her person, family or property, and (2) the person’s lack of capacity is due to mental illness, mental retardation, senility, injury, or some similar cause or condition.
After the Clerk declares somebody incompetent, then we have to figure out who will be the Guardian. The Clerk will look to family first, but just about anyone can be considered. The key here is that the Clerk will ultimately decide what is in the person’s best interest — and that isn’t always family.
Types and Limits to Guardianship
There are different types of guardianships: Guardian of the Person, Guardian of the Estate, and General Guardian. Guardian of the Person has to do with housing, medical, maintenance, but not financial matters. Guardian of the Estate has to do with the property, estate, business affairs, and financial decisions. A general guardian is a combination of both.
A guardianship should be limited if possible to make sure the person still has all the power to make decisions that they can still make. Stripping a person’s right to make decisions should not be taken lightly, so if there is a way to retain some rights, that should be sought. A driver’s license, in the absence of an order saying otherwise, will be revoked when a person is declared incompetent, for example.
If a guardian is handling money, they will have a duty to keep records and show the Clerk periodically what they have done with the money.
If the person regains their ability to manage their own affairs (i.e. they wake up from a coma), a motion to modify the guardianship should be had. Similarly, guardians can resign and be removed under appropriate circumstances.
Getting Help with Guardianship
If you need help with a guardianship, either as somebody who wants to participate in a guardianship that has already been started or to help your loved one get the care they need as they are becoming less able to manage their own affairs, our NC Attorneys are very experienced in Guardianship Law. We have offices in Durham and Sanford and help people all over the State of North Carolina, including Wake County, Lee County, Durham County, and the many counties surrounding those.