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If you are an older adult, others may question your memory, sanity, and ability to lead an independent life. They may say you can no longer make decisions for yourself. However, we all have the right to decide our life path, whether good or bad. In the case that others think they know what is best for you, they may try to take your rights as an elder adult. Find out how to keep yours.

Durable General Power of Attorney

One of the best ways to keep your independence intact is by drawing up a durable general power of attorney. With this legal document, you freely choose someone you trust who will make decisions for you should the time come that you need that kind of help.

For example, if you have a diagnosis of Alzheimer’s, you may worry that you will lose your ability to function in society. You may dread the day that you no longer can make your own decisions. However, when you appoint a durable general power of attorney, you choose to trust someone who knows what your wishes are. In addition, you can inform them what you want for your future so that they can treat you with the respect you deserve.

Without a durable general power of attorney, your life is open to control from others should you become incapacitated or incompetent. A durable general power of attorney puts your life decisions back into your own hands.

Court Appointed Guardianship

If you are showing signs of poor financial decision-making or not keeping up with your daily care, others may feel concerned for you. At this point, if you don’t have a power of attorney in place, someone may petition the court to declare a guardian for you.

If a judge declares a guardian for you, it can be one of the following types:

  • Guardian of the Person: this is someone who makes sure that your daily needs are met, such as grocery shopping, day-to-day care if you are incompetent or incapacitated, household needs, etc.
  • Guardian of the Estate: This is an appointed individual who cares for your finances. They manage all of your business or household banking, retirement accounts, and general budget.
  • General Guardian: This kind of guardian is both Guardian of the Person and Guardian of the Estate. They handle everything you need care for.

Hold Onto Your Elder Rights

We all know people whose friends or family have taken advantage of their vulnerability as they grew older. It is essential to make a plan as you grow older, just in case you need someone to care for and make decisions for you.

A guardianship is a formal arrangement with the appointed person answering to the court about their spending and care plans for you. However, it can be very tedious and exhausting for the guardian, mainly because they may not be allowed to make decisions that you would have wanted if the court disagrees. For example, if you like to invest in stocks and have a portfolio that is on the risky side, a judge may rule that the guardian of your estate may not continue to engage in reckless investments.

On the other hand, when you appoint a power of attorney instead, you lay out what you want without court interferenceIf you don’t yet have your durable general power of attorney in place and someone makes a guardianship petition, you may contest the guardianship.

Holding Onto Elder Rights with Your Guardian Ad Litem

If you are incapacitated or incompetent, or even careless or disabled, your family or friends may petition the court for a guardian. In this case, the court appoints a guardian ad litem to make recommendations to the clerk of court (the judge). The guardian ad litem is usually an attorney who will talk with your family, friends, doctors, and even neighbors. In addition, the guardian ad litem looks at your medical records and delves into your life to get a big picture of how well you make your own life decisions.

The amount of inquiry by the guardian ad litem depends on how contested the proceeding is. Digging deep into the evidence presents the best overall picture of how you are coping with daily life. After researching and talking with everyone involved, the guardian ad litem makes a report to the court. 

A Guardian Ad Litem Is On Your Side

The law in North Carolina requires a guardian ad litem to consider whether a limited guardianship is appropriate. A guardian ad litem may have thoughts as they write up the report, such as:

  • “Can we do something to make sure this individual retains as many of their own rights as possible?”
  • “Is this man capable of living alone and just having evening care for dinner and bedtime? Perhaps he only needs a social services kind of situation where a caregiver comes a couple hours per day.”
  • “This woman cooks and cleans her own home. Does she just need help with finances and paying her bills? Maybe I could recommend a financial guardian only.”
  • “This man is a pro handling his own finances but just needs help getting groceries and cleaning his house. What can we do to help without stripping his personal rights?”

A  guardian ad litem does not want the court to take away rights from someone capable of managing their own affairs, so they work with the clerk of court to craft a guardianship order that will allow as much freedom as possible.

The court errs on the side of letting an elder continue to do what they can do. Safety is considered, but not to the extent that the person loses all rights to live their own life. The clerk may decide the person is incompetent but should retain certain rights and privileges because they can do certain things but not others.

Fighting For Your Elder Rights in Court 

If you contest guardianship, you can spend several days in court struggling to retain your personal rights. The clerk will want to consider all the evidence and make findings of fact to determine if you can manage your own affairs. This fact-finding process may take several days. Guardianship court is an emotionally wrenching process for most older adults. The people you trust in your life testify before the clerk of court about your incompetence to care for yourself.

You can avoid guardianship court by working with your attorney to develop estate planning documents. Carefully written documents such as a durable general power of attorney or healthcare power of attorney give you the power to choose. You can make decisions for yourself by planning ahead.

We Can Help

If you are contesting guardianship or need help drawing up power of attorney documents, we are here for you. Our elder law attorneys at Hopler Wilms and Hanna focus on guardianship and elder rights. Our experience as guardian ad litem and work with the clerk of court can bring about the best outcome in your particular situation. We understand the need to live your own life, even if you have limitations. Contact us today to set up a free initial consultation to discuss how we can help you live your best life.

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