Guardianship

Most of what we do, estate planning, is to avoid guardianship. Why? Because it can be expensive, involves the court, and opens your life and finances up to public records. If someone you love becomes legally incompetent due to dementia, coma or other illnesses and no proper advance planning was done while they were still of sound mind, this may be the only way to ensure proper care and protection. 

 

Obtaining Guardianship

 

When a person is no longer capable of handling his or her own financial matters or making healthcare decisions, then an agent under a durable power of attorney and a healthcare power of attorney may step in and take over. This requires advanced planning and having these documents in place before the need arises. What happens when a person fails to execute an estate plan that contains these necessary disability documents?

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One of our attorneys can help you file a petition for adjudication of incompetency to start the process of obtaining legal guardianship. Guardianships are designed to protect people. They can only be obtained by following the proper legal procedure. The process is initiated by filing a petition with the Special Proceedings Division of Superior Court. The clerk will appoint a Guardian ad Litem attorney to represent the best interests of the respondent. This is a safeguard to ensure the person needs a guardian.

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The Guardian ad Litem attorney will meet with the respondent to determine his or her wishes in the matter. The attorney will all also evaluate the respondent's ability to communicate and make decisions. A report of these findings as well as the attorney's opinion on what result will be in the respondent's best interests will be filed in court.  

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A hearing will take place before the clerk to hear the facts of the case. If the facts show that the person is not legally competent to make decisions then the clerk will appoint a guardian. There are three types of guardians in North Carolina:

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Guardian of the Person: The person appointed as a guardian of the person is responsible for the making healthcare decisions, living arrangements and setting up a care plan. The duties involved vary based on the needs of the ward. 

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Guardian of the Estate: The person appointed as guardian of the estate will manage the ward's finances, legal issues and taxes. 

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General Guardian: The person appointed as general guardian has the powers and responsibilities of both a guardian of the person and a guardian of the estate. It essentially merges those two roles making one person responsible for handling all financial and health related matters. 

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Our Raleigh Guardianship Attorneys Can Help You Every Step of the Way

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 The guardianship process can be complex. We help you initiate the proceeding , attend all court hearings and walk you through the paperwork involved after guardianship has been appointed. Contact us to schedule a meeting to discuss your guardianship needs. 

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