When individuals can no longer care for themselves, someone else can file a petition for guardianship. If necessary, the clerk of court will appoint a temporary guardian for the individual. A temporary guardianship only lasts until the clerk of court decides whether the individual needs a permanent guardian and appoints that person.
Who Can File a Petition for Guardianship?
You can find the petition for guardianship at NCCourts.gov. A checkbox allows you to show there is an immediate need for a temporary guardian. Anyone can file the petition to get the guardianship court process started. This person is often a child, close friend, or social worker.
How Do I File for Temporary Guardianship?
There are times when a clerk must declare a temporary legal guardianship immediately. Some situations are dire, and the person in question needs immediate help.
For example, Rose is an older adult struggling with multiple health issues and taking 20 different prescription medications. Jennifer, Rose’s daughter, recently took her to the hospital and found she had taken an accidental overdose of a blood pressure medication. This is not the first time this has happened.
The doctor at the hospital has seen Rose many times in the past year about medication mix-ups. He urged Jennifer to get an immediate guardianship and wrote in her mother’s medical notes that Rose is no longer able to care for herself medically.
In addition, Rose has early-stage Alzheimer’s and has developed a friendship with someone asking for an investment of her retirement funds into a “new kind of technology.” Rose lives alone, and this “friend” is there all hours of the day and night when Jennifer goes to check on her mother.
Rose doesn’t listen to Jennifer about the new “friend,” that this person may be dangerous, and she refuses to let Jennifer help organize her medications. Jennifer worries that her mother may sign over her livelihood to a financial predator in addition to her worries about her mother’s health safety.
In this kind of situation, the court may select a temporary guardian. When there is a substantial risk of harm, the court will protect the individual from themselves.
What Is Temporary Guardianship?
The clerk will hold the hearing as soon as possible if you indicate that immediate action is necessary. The latest that the hearing will occur in this case is 15 days after the individual in question has been served papers about the proceeding.
At this early hearing, the clerk of court will decide whether to appoint an interim temporary guardian and who this person should be. In addition, the clerk will determine what the interim guardian is responsible for. Finally, the clerk’s order will limit the interim guardian’s powers and duties based on the immediate needs of the individual in question if needed.
The temporary guardianship ends when the clerk of court specifies. This termination of temporary guardianship could occur on:
- The date that the temporary guardianship ends according to the clerk
- 45 days
- At a future date when the clerk appoints a permanent guardian
- When a case is dismissed
Temporary Guardian Hearing
If you represent yourself in the court proceeding, you must adhere to the same civil procedure and evidence rules as a licensed attorney. It is possible to represent yourself if you study laws and procedures before the hearing date, but it is difficult to understand how it all works without counsel. Often, it is in your best interest to hire an attorney to represent your case before the clerk of court.
To receive temporary guardianship, you must show that you can act in the individual’s best interest. You can demonstrate competence in your petition and also by showing proof at the emergency hearing that you are financially competent and a trustworthy kind of person. In addition, you must show proof of responsibility in your own life’s duties and a capability to work with others.
You must also prove that the individual in question cannot take care of themselves or make good decisions. Without this proof, the court cannot in good conscience, remove some or all of the individual’s rights in question.
Choice of a Permanent Guardian
When the court decides that an individual needs a permanent guardian, they will take time to investigate the possible choice of guardian. The court often does this investigation through an appointed attorney. This attorney is called the Guardian Ad Litem.
The guardian ad litem looks at all evidence, including medical records or witness statements. This appointed attorney represents the best interests of the individual in question. They also talk with family and friends and eventually make a recommendation to the court.
What Does the Court Look At?
Factors in determining a permanent guardian include:
- Your involvement with the older adult’s money in the recent past. Have you made any questionable transactions that would disqualify you from being a legal guardian?
- How are you related to the individual in question? How long have you been a part of their life?
- Are you financially responsible? Do you have good credit? Do you have past bankruptcies?
- What does the Guardian Ad Litem report about you? What have they found out about your life and your relationship with the person in question?
- Your social media accounts: do you have a history of causing problems for others or are you kind and caring online?
- Are you inept in your own life in regards to holding a job or raising children? Do you have DWI convictions or assault or fraud charges on your record?
If there is a consensus among family members that a specific course of action is best, the court will take this into account. When those close to the person in question agree that the person needs a guardian and that a specific person is good for the job, it makes the clerk’s decision easier.
If the court finds that you are not the right person to be a permanent guardian, the clerk will appoint someone else. If there is no one suitable in the immediate family and close friends, the court will appoint a public guardian.
We Can Help
If you are involved in a proceeding for temporary or permanent guardianship, we can help prepare your case, look into the allegations of incompetence, and represent you in court. Our experience as elder law attorneys gives us unparalleled focus in contested guardianship cases.
We represent those who want to care for an older person who is no longer capable. We also represent adults whose competence is in question. No matter what legal struggle you face related to guardianship, we are here to listen and find legal solutions for you. Contact us today for an initial consultation.