If you’re embarking on the journey of establishing guardianship for an adult in need of assistance, or if you’re an adult seeking to safeguard your autonomy against an unwanted guardianship, the guidance of an experienced guardianship lawyer is indispensable.
Navigating the intricate landscape of guardianship law in North Carolina demands specialized knowledge and expertise. Whether you’re advocating for the rights and well-being of a loved one or defending your own desire to lead a self-determined life, a skilled attorney can provide invaluable assistance in gathering crucial evidence and protecting your interests.
In this article, we will delve into the workings of guardianship in North Carolina and explore how knowledgeable guardianship attorneys can serve as steadfast allies on your journey, ensuring the best possible outcome for all parties involved.
How Does the Guardianship Process Work in North Carolina?
The guardianship process in North Carolina follows legal procedures designed to protect and assist individuals who cannot make decisions or care for themselves. Here is an overview of how the guardianship process typically works in North Carolina:
Petition for Declaration of Incompetence
The process begins by filing a petition for declaration of incompetence with the clerk of the superior court in the county where the individual resides.
The petitioner, usually a family member or concerned party is generally worried about an alleged incapacitated person. As family members age, the legal process of filing a guardianship petition can help a caring person gain legal custody of another adult.
“Anyone may file a written request (a petition) with the clerk of superior court alleging that an adult (the respondent) should be declared incompetent. Every clerk’s office has forms that may be completed and filed for the petition. The petition must include a sworn statement that the information in the petition is true. A fee for filing the petition may be required and may be reimbursed later by the court unless the court determines the petitioner did not have good reason to start the guardianship proceeding.” (1)
If you’re concerned about an adult’s mental health or healthcare decisions, you can file a petition for incompetence and for the court to appoint an adult guardianship.
Upon receiving the petition, the court will appoint a “guardian ad litem,” an attorney, or a social worker to conduct an evaluation and investigation. This evaluation aims to determine the individual’s capacity and assess whether guardianship is necessary. The appointed person will visit the individual, interview relevant parties, review medical records, and submit a report to the court.
Notice and Hearing
The court will schedule a hearing and notify all interested parties, including the individual in question, their immediate family members, and any other relevant parties.
At the hearing, interested parties will present evidence. And witnesses may testify to establish the need for guardianship. The court will also consider the wishes of the individual whenever possible.
Providing Evidence of Incapacity to Make Their Own Decisions
Under state law, to seek guardianship, you must provide evidence demonstrating the need for a guardian and the individual’s incapacity to make decisions regarding their personal, financial, or medical affairs.
Guardianship cases for a severely incompetent or disabled adult must prove to the court that it is in the person’s best interests for a legal action to declare them incompetent and sever their rights as an adult.
You’ll need to go through the court proceedings necessary to obtain legal guardianship of your loved one. After the declaration of incompetence, the process to name the guardian happens next.
Guardian Is Appointed By the Court
Once the court goes through the complicated process of naming a guardian, the judge looks for someone who can adequately care for the “ward.” Whether social services, a nursing home, or another guardian is up to the judge.
The court may appoint one of the different types of guardianships, including the following:
- Guardian of the Person: responsible for making a ward’s personal and medical decisions for their best interests
- Guardian of the Estate: responsible for managing the individual’s financial stability and assets for their best interests
- General Guardianship: Also called a plenary guardian, this person has all of the responsibilities of both a guardian of the estate AND the person.
- Successor Guardian: Someone named to step in if the court-appointed guardian can no longer act as the guardian.
- Limited Guardianship: The court may also appoint a limited guardian who handles only certain particulars of the ward’s life. This could include paying bills or mowing grass, or any number of things that a ward needs help with.
The appointed guardian must meet specific qualifications and responsibilities outlined by North Carolina law. If a proposed guardian does not meet the standards, the court may appoint a temporary guardian until finding a permanent guardian.
Courts in North Carolina recognize that incapacitated adults deserve the most independence they can live well with. A guardianship helps to prevent imminent danger but is not meant to take rights away from an adult capable of making some decisions independently.
If a person does not need a guardianship, the court will not generally appoint one. With the many types of guardianship, judges try to limit a guardian’s control when possible.
However, if you’re concerned about losing your rights as a disabled or older adult, contact guardianship lawyers to help defend your rights in the legal proceedings.
What Are Some of the Responsibilities of a Guardian of the Estate?
As a legal guardian of the estate, you assume significant responsibilities in managing the financial affairs of the individual under your guardianship. Some of the key responsibilities of a guardian of the estate include:
You manage the individual’s financial assets, including bank accounts, investments, real estate, and other properties. This involves keeping accurate records of income, expenses, and transactions related to the estate.
Budgeting and Planning
You must create and maintain a budget covering the individual’s living expenses, medical costs, education, and other necessary expenditures. This ensures their financial resources are used wisely and in their best interest.
You must protect the individual’s assets from loss, damage, or misuse. This may involve maintaining insurance coverage, paying bills on time, and making informed decisions regarding investments or property management.
As a guardian of the estate, you are responsible for filing the individual’s tax returns on their behalf. This includes reporting income, claiming deductions, and fulfilling all tax obligations under the applicable laws and regulations.
You must provide regular financial reports to the court detailing the estate’s income, expenses, and overall management. These reports ensure transparency and accountability in your role as a guardian.
Making Financial Decisions
Acting in the individual’s best interest, you will make investment decisions, engage in property transactions, and handle other financial matters. It is vital to exercise sound judgment and seek professional advice when necessary.
Seeking Court Approval
Certain major financial decisions may require prior court approval. Examples include selling significant assets, entering into contracts on behalf of the individual, or making substantial investments. It is essential to consult with an attorney to understand the specific requirements for seeking court approval in your jurisdiction.
It’s essential to keep in mind that the obligations of an estate guardian can differ based on state regulations and the unique conditions of the guardianship. Seeking guidance from a lawyer with expertise in guardianship affairs is vital to guarantee adherence to legal obligations and to manage your responsibilities proficiently.
What are Some Responsibilities of a Guardian of the Person?
As a legal guardian of the person, your role is focused on making decisions related to the personal well-being and care needs of the individual under your guardianship. Here are some of the key responsibilities of a guardian of the person:
Health Care Decisions
As the responsible decision-maker for an individual’s healthcare, it is crucial to consider their preferences, consult with healthcare professionals, and make decisions in their best interest. This includes consenting to medical treatments, surgeries, medications, and therapies.
Another responsibility is determining and overseeing the individual’s living arrangements, whether in their own home, with family members, or in a care facility such as a nursing home or assisted living facility.
Personal Care Needs
Ensuring the meeting of the individual’s personal care needs, such as hygiene, nutrition, clothing, and overall well-being, is another important task. If necessary, arranging for assistance with activities of daily living (ADLs), such as bathing, dressing, and grooming, is also part of this responsibility.
If the individual is of school age or pursuing vocational training, making decisions regarding their education and training opportunities, advocating for their educational needs, and ensuring they receive necessary support and services is also necessary.
Social and Recreational Needs
Promoting the individual’s social integration and engagement in recreational activities is also a duty. This involves facilitating social interactions, participating in community events, and identifying opportunities for individuals to pursue their interests and hobbies.
Advocacy of the Ward
Acting as an advocate for the individual is also crucial, ensuring their rights are protected, and their voice is heard. This may involve communicating with healthcare providers, educators, and other professionals involved in the individual’s care to ensure their needs and preferences are respected.
Regularly assessing the individual’s well-being, evaluating the effectiveness of the care arrangements, and making adjustments as necessary is vital.
Remember that the specific responsibilities of a guardian of the person may vary depending on state laws and the individual circumstances of the guardianship. An experienced guardianship attorney will fully understand your legal obligations and can help you carry out your responsibilities effectively.
Court Oversees Legal Guardian Including Financial Decisions
Once the court appoints a guardian, the guardian must file periodic reports with the court, providing updates on the individual’s well-being and the management of their affairs. Annual accountings required by the court help them oversee the financial decisions of a guardian.
The court may also conduct periodic reviews or require additional evaluations to ensure the guardian is acting in the individual’s best interest.
It’s important to note that the guardianship process can be complex. Working with knowledgeable guardianship attorneys can help you navigate the legal requirements and ensure the best possible outcome. Consulting with a guardianship lawyer will help you understand the specific details and intricacies of the process in North Carolina.
Our Guardianship Attorneys Are Here to Help
Obtaining legal guardianship is complex. The process of filing the incompetency petition can feel heart-wrenching. As you attend a legal proceeding putting your loved one “on trial,” you must watch the court prove their inability to make decisions for themselves. Such cases are never easy to be a part of.
And once you receive the title of “guardian,” the court imposes onerous limitations, proofs, inventories, and accountings.
That’s why we provide guidance to walk you through each step of a guardianship case. With our guardian ad litem experience and our extensive dealings in incompetency hearings and guardianship court proceedings, we can help you create the best outcome for all involved.
Contact us today and find out how we can help you get through this time and find a place of hope and security for yourself and your loved ones again.