If you are getting older and wondering how you will care for yourself in the future should you need help, now is the time to learn about your options. A guardianship is not always necessary when someone can’t care for themselves. The state of North Carolina recognizes alternatives to guardianship, including limited guardianship. But what exactly is a limited guardianship, and how does it help an individual who needs care?
How Does a Guardianship Begin?
Usually, guardianship begins when a loved one notices that you can no longer care for yourself. Your loved one then files a petition to have a guardian appointed by the court. The court hears arguments from you, your guardian ad litem, and your family and loved ones about whether you show an adequate capacity to make decisions regarding your care. The court looks at whether you can manage your financial affairs and household affairs. They also look at medical records and whether you care for your physical needs.
If the judge decides you are incompetent to care for your affairs, he appoints someone to make decisions about your care. Guardianships always begin with a court process and a judge who rules on the level and type of guardianship you require.
Finding Incompetence In Court
Having poor judgment or lack of financial ability is not necessarily enough to show that you are incompetent in caring for yourself. A guardianship arrangement happens if the court finds clear, cogent, and convincing evidence that you lack sufficient capacity to:
- Make or communicate important decisions about yourself
- Manage your own affairs
- Make or communicate important decisions about your family
- Make or communicate important decisions about your property
The court will consider and take into account your medical issues if you need a guardian due to:
- Mental illness
- Intellectual or developmental disability
- Epilepsy
- Cerebral palsy
- Autism
- Inebriety
- Senility
- Disease
- Injury
- Similar causes or conditions
The Limited Role of a Guardian
If a court declares you incompetent to care for your own affairs, the judge may declare a full guardianship or a limited guardianship. A guardian is simply a surrogate decision-maker and advocate for you. A caring and capable guardian enriches your life with their concern for your well-being.
However, North Carolina law recognizes that courts should only consider guardianship when there are no appropriate, less intrusive alternatives. The statutes also recognize that guardianship should give you a fuller capacity to exercise your rights, not remove rights you already possess. The laws in NC encourage the court to consider limited guardianships tailored to the needs of the incompetent person.
A guardian by law should allow you to:
- Participate as much as possible in the decisions affecting you
- Exercise rights that are consistent with your capabilities, allowing for the possibility of error (to the same degree as is permitted for persons who are not incompetent)
- Have the same possibility of error as a person who is not incompetent
- Have the right to make your own choices
Under guardianship, you may also still retain the right to:
- Make a will (in some cases)
- Vote
- Get married
- Keep your driving privilege (if you request a hearing with the DMV and show evidence that you should be permitted to drive)
- File motions or appeals in your guardianship case
- Be represented by an attorney or guardian ad litem in guardianship proceedings
North Carolina law encourages the court to consider limited guardianships tailored to the needs of the incompetent person. That means that the court may write the guardianship duties and your rights out in a way that gives you more freedom than a standard guardianship.
Loss of Rights
Depending on the type of guardianship, the guardian may have the authority to decide:
- Where and with whom you live
- What medical treatment you receive
- How to handle your money and property,
- How to resolve legal claims or court cases in which you are involved
- Whether to enter into contracts on your behalf.
You can also lose your right to file a court case, sign a contract, serve on a jury, possess or purchase firearms, and execute powers of attorney.
Retain Legal Control of Your Life
Under guardianship, you lose the right to enter into contracts and power of attorney relationships. Therefore, it is essential to plan now if you’d like to retain legal control over your future. After you’ve gained a court-appointed guardian, you may no longer execute a valid power of attorney.
However, if you understand now what you are signing, you may work with an attorney to execute essential power of attorney documents. The Durable General Power of Attorney and Health Care Power of Attorney let you give another person the authority to take care of your financial, medical, or other matters in the future. With the power of attorney documents, you make the decisions instead of a court.
You decide:
- Who will assist you with important decisions
- Who will help manage your affairs
- Whom you will give the authority in the power of attorney
There is no need for a court proceeding as there is with guardianship. In a guardianship proceeding, the court decides the answers to these questions. A court could make decisions you would never make for yourself. The judge could appoint for your guardian a cousin you’ve never liked or someone who isn’t even related to you.
NCCourts.com states, “It is important to weigh all alternatives to guardianship prior to filing a petition with the court. Guardianship should only be considered when no other alternative is appropriate.”
Other Ways to Keep Your Legal Freedom
Advance Directive for Natural Death (“Living Will”)
This legal document explains what medical treatment you would or would not want. You may include types of medications, DNR orders, respirator treatment, intubation, dialysis, etc.
Advance Directive for Mental Health Treatment
This legal document explains what mental health treatments you would or would not want, including electric shock therapies and medications.
Representative Payee
If you receive specific state or federal benefits, you may assign an individual or agency payee to receive and manage these funds for your use. Examples are Social Security income, supplemental security income, and veteran’s benefits.
Joint Bank Accounts
You and someone you trust may set up joint bank accounts requiring both signatures for withdrawals or automatic payment options to manage money.
Special Needs Trust
Also called a 3rd party trust, this kind of trust holds money for your benefit as a disabled adult so that you can maintain eligibility for needs-based public benefits. An attorney can assist in setting up a special needs trust.
Home Health Care
If you or your family hire a home health care agency to assist you with activities of daily living, you do not need guardianship proceedings. Home health care services include dressing, bathing, cooking, and cleaning,
Community and Family Support
Just because you can’t manage all of your daily life activities on your own does not mean you need a court-ordered guardian. Many disabled adults have family and friends who help them manage the details of their lives.
Perhaps you have a daughter who can remind you to take your medicine each morning or a friend who is happy to check on you each evening. Your family and friends can help you make your decisions when you trust them and lean on their loving support.
Find Help
If you are wondering about next steps to ensure you don’t face guardianship court proceedings in the future, we can help. Our estate planning attorneys work with you to draw up the documents you need to keep your independence now and choose for yourself who will help you in the future. We also work with planning for health decisions and keeping your finances safe during your senior years. Contact us today and find out how we can help you.