If you have a loved one who has a mental disability or is showing signs of dementia, you may be wondering what the next step is. You want to make sure they get the care and attention they need. One option is to become their legal guardian. This means assuming responsibility for their well-being and making decisions on their behalf. Let’s look at how to become a legal guardian for your loved one.
Who Needs a Legal Guardianship?
Sometimes adults cannot care for themselves and need someone to act as a quasi-parent. An adult guardianship gives a legally appointed guardian the right to make decisions on behalf of an adult with diminished capacity.
The North Carolina Council on Developmental Disabilities shares the following statistics that stand out in our state:
- Out of more than 5,000 adults served by a public guardian in NC, nearly 3,000 (56%) are younger adults age 18-59 years old, the majority of whom (86%) have a primary diagnosis of intellectual and other developmental disabilities (I/DD) or mental illness.
- Of older adults 60-84 years, who comprise 37% of adults served by public guardians, almost half (48%) have a primary diagnosis of I/DD or mental illness.
Adult guardianship is for any individual who needs a guardian to help them with daily life. People need help for all kinds of reasons, including:
- Cognitive decline
- Degenerative disease
When someone reaches the level where they cannot handle things on their own and can’t manage their affairs, they need a guardian or an appointed power of attorney who can act for them in their place.
Guardians help with many different things, including:
- Legal affairs
- Signing papers
- Handling medical needs and decisions
- Making personal care decisions and providing for personal needs
- Making business or financial decisions
What is a Legal Guardianship?
Generally, given circumstances where an individual can handle some areas of their life, courts err on the side of giving more independence. For example, a judge may grant guardianship to help with business and financial decisions only if a person can handle their day-to-day personal care.
The courts generally grant three types of guardianships to provide the services an individual needs help with. Based on the abilities and needs of the Ward, the Court may appoint one or more of the following types of guardianship:
- Guardian of the Person – Authority over a Ward’s personal care, residential, and medical decisions. With this power, you are solely responsible for the care of your Ward, except for finances. You must provide medical and psychological treatment, education, and training. You also must follow their advance instructions regarding mental health or medical care. Your duties involve more than just financial decisions; it’s about ensuring the Ward’s well-being.
- Guardian of the Estate – Authority over finances, but not personal care, residential, or medical decisions.
- General Guardian – Combined power of Guardian of the Person and Guardian of the Estate. Their general authority covers almost all aspects of their affairs.
- Limited Guardian – Specified limited authority that may include certain facets, such as only medical or only residential decisions. A court generally customizes limited guardianship around specific needs and limitations.
Can Family Members Make a Court Petition?
If someone you love needs help with living their everyday life, you must go through a court process that starts with filing a petition for incompetence. Your petition, filed with the Clerk of Superior Court, sets the process in motion to prove that an adult you care about needs help.
The clerk of the superior court accepts petitions for incompetence. After you file a petition, the Clerk of Superior Court holds a guardianship hearing to determine whether to declare your loved one legally incompetent and needing a guardian. (2)
The clerk will look at whether your family member can care for and make decisions for themself. If declared incompetent, your loved one receives the title “Ward,” and the judge will appoint a guardian to handle their financial, medical, and other decisions.
As a family member, you can make the petition and recommend yourself as the guardian. However, others may also submit petitions.
Anyone, including a relative, friend, medical provider, or any State or local human services agency, through an authorized representative, can file a verified petition with the court. The petitioner is responsible for presenting evidence at the hearing to prove that the respondent is incompetent by clear, cogent, and convincing evidence, which may include subpoenaing witnesses to testify. (1)
The judge will consider the proposed guardians and decide who would act in the ward’s best interests.
Answering Competency Questions in Your Guardianship Petition
You must also fill out a required documentation section in your petition to become a guardian.
You’ll use the forms provided to state whether you believe your family member to be “competent” or “incompetent” in these areas:
- Language and Communication: Understands/participates in conversations, can read and write, understands signs such as “keep out,” “men,” and “women.”
- Nutrition: Makes independent decisions regarding eating, prepares food, and purchases food.
- Personal Hygiene: Bathes, brushes teeth, and uses proper restroom hygiene.
- Health Care: Makes and communicates choices regarding medical treatment/caregivers, notifies others of illness, follows medication instructions, reaches emergency health care
- Personal Safety: Recognizes danger, seeks assistance as needed, and protects self from exploitation or harm.
- Residential: Makes and communicates decisions regarding residence/roommates, maintains a safe shelter
- Employment: Makes and communicates decisions regarding work, demonstrates vocational skills such as neatness and punctuality, and writes or dictates application forms.
- Independent Living: Follows a daily schedule, conducts housekeeping chores, uses community resources such as a bank, store, or post office
- Civil: Knows to contact advocate if exploited, understands consequences of committing a crime, registers to vote
- Financial: Makes and communicates decisions about paying bills and spending discretionary money and makes change for $1, $5, and $20
- Makes and communicates decisions regarding the management of a personal bank account, savings, investments, real estate, and other substantial assets
- Can resist attempts at financial exploitation by others
If you obtain guardianship of your loved one, you must act in their best interest. The court will ask for regular inventories and reports about your guardianship duties.
Preparing for the Future of Loved Ones
The guardianship court process to determine your loved one’s capabilities can be expensive and embarrassing to you and others. You may need to say things about your parent that are hard for them to hear and for you to say.
The process of obtaining guardianship papers is also public. Nothing about your parent is kept confidential or private. This expensive judicial process exposes your parent’s frailties to the public.
Courts, in most cases, require ongoing expense reports and details of what you are doing for your parent. The best way to avoid this is to work with estate planning or elder care attorneys before needing to make a petition for guardianship.
If you have a parent or grown child who cannot care for themselves, becoming a legal guardian may be the right step for you.
However, if you work with an estate planning attorney before guardianship is needed, you can avoid filing a petition with the court. Instead, your loved one can appoint you as their durable general power of attorney.
As a durable general power of attorney, you may care for complicated aspects of your loved one’s life, such as property, and protect their interests. With a durable general POA, there is no need to petition the court for adult custody. You can make important decisions for your loved one without attending court.
We Can Help
Deciding whether to file for guardianship of a loved one is difficult, but Hopler, Wilms, and Hanna Law Firm is here to help you through the process. Our elder law and guardianship attorneys focus on the issues you encounter when applying for guardianship and will guide you through every step of the judicial process.
Get in touch today to discuss your options going forward. We can help ensure your loved one has the care they need!