If someone you love needs help to care for themselves, a court often must appoint a guardian. However, before the court can appoint a permanent guardian, it appoints an attorney to represent the interests of the individual. This attorney guardian ad litem is responsible for investigating the general welfare and needs of the individual. The guardian ad litem also makes a recommendation to the court.
What Is A Guardian?
There are different types of guardianship in North Carolina. Depending on how much help someone needs, an estate guardian may handle financial and property concerns only. A guardian of the person may structure the care of the individual. Care of the individual could include medical appointments, household upkeep, and day-to-day care needs.
A guardian who handles everything financial for the individual’s estate and the care of the individual is a general guardian.
How Does the Court Process Begin?
Usually, a concerned family member files the petition for guardianship. Perhaps a son notices that his mother is not keeping up paying her bills or hiring anyone to cut the grass. A worried daughter might see that her father is not eating and does not grocery shop for himself anymore.
When a grown child sees incompetency in their parent, they can file a petition to appoint a guardian. Others who are close to an incompetent individual can also file a petition.
Whose Side is the Guardian Ad Litem On?
After someone files a petition, the sheriff serves the petition on the alleged incompetent adult. The court then appoints a guardian ad litem to represent their interests. The guardian ad litem’s job is to advocate for the person in question.
Sometimes the guardian ad litem’s idea of their best interest is not the same as their own idea. If this is the case, the incompetent adult can also hire their own attorney to defend their position.
What Does the Guardian Ad Litem Do?
The guardian ad litem is like an investigator for the individual’s life, looking into whether they can live independently or not. Some of the duties include:
- Interview family and friends
- Discuss records with service providers
- Review medical records with doctors and other health personnel
- File a brief with the court detailing their recommendations for the individual
- Testify at the hearing about what they’ve learned
Influence With the Clerk of Court
The clerk of court is the judge in a guardianship case. The guardian ad litem’s opinion is often weighed very heavily by the clerk. The clerk chooses the guardian ad litem for each case. The chosen attorney often works with the clerk regularly in these types of cases. The clerk may repeatedly appoint an attorney adept at revealing crucial details and thoroughly investigating allegations.
Is the Guardian Ad Litem Neutral?
The guardian ad litem is a neutral party specifically appointed by the clerk who handles the case. The guardian ad litem is not prejudiced in any way beforehand.
Children of the adult may desire a specific outcome. Other relatives may also have a stake in the result of a guardianship hearing. However, the guardian ad litem looks at all evidence impartially. They are professionally responsible for investigating what is best for the incompetent adult.
How Long Is the Guardian Ad Litem Appointment?
The court gives time for the guardian ad litem to investigate the matter of incompetence and submit a brief before scheduling the final hearing. The hearing could be as soon as ten days or several weeks after the court receives the petition.
If the individual needs a guardian immediately, even before the hearing, the clerk may appoint a temporary guardian until the hearing. Later, at the hearing, the court sets the permanent guardianship if necessary.
Who Attends the Hearing?
Anyone interested in the case can present evidence at the hearing. Often, different relatives have a stake in the outcome of the hearing. They may attend the hearing and want to discuss issues such as the choice of the guardian. They may also argue whether the individual is actually incompetent.
What is the Purpose of the Hearing?
The hearing is basically like a trial, so preparation is vital. If you submitted the petition, you have the burden of proof. This means that you must prove by clear and convincing evidence that the individual cannot manage their own affairs.
If the clerk of court, guardian ad litem, and the petitioners are all in agreement, the hearing may quickly end with the clerk’s decision. However, if family members disagree, the court may require more proof before making a decision. Some cases are dismissed for lack of evidence. Other times, the clerk allows negotiation until an agreement is reached on a limited guardianship arrangement.
We Can Help
If you’ve submitted a petition to file for an incompetency hearing and guardianship, talking with an attorney can set your case up for success. Unfortunately, without organized and unmistakable evidence, the clerk could dismiss your case. A dismissal could leave your loved one without the support they need.
If you have questions or concerns about the process of guardianship or need to start a proceeding, contact us for help. Or, if you need an attorney to fight for your own freedom from guardianship, give us a call. Our experienced guardianship attorneys attend hearings frequently and are also knowledgeable of the guardian ad litem position. We want to walk you through the options and best-case scenarios for your situation. There are legal answers to your struggles. We’ll help you find them.