Adult Guardianship

Is your loved one in need of a guardian to help manage his or her affairs? At McAdoo & Lorick, we assist clients with navigating the process of adult guardianship. We understand the challenges and emotional toll of going through the adult guardianship process. We take the time to fully appreciate the unique intricacies of your situation. Our ultimate goal is to ensure that you are able to support your loved one when they are unable to care for themselves.

What is guardianship?

Guardianship is a legal relationship in which a person(s) or agency (the guardian) is appointed by the court to make decisions and act on behalf of a person who does not have adequate capacity to make such decisions involving the management of personal affairs, property, or both. A court process is required to create guardianship.

What is the role of a guardian?

A guardian is a surrogate decision-maker and advocates for an individual (the ward) adjudicated incompetent by the court. The guardian must allow the ward to participate as much as possible in the decisions affecting him or her. The guardian is required to preserve the opportunity for the ward to exercise the rights that are within his or her comprehension and judgment, allowing for the same possibility of error as a person who is not incompetent. The guardian must protect the ward's right to make his or her own choices.

Is guardianship the same as power of attorney?

No. Under a power of attorney, an individual decides who will assist him or her with important decisions and the management of his or her own affairs and delegates that authority in a written document(s) without a court proceeding. In a guardianship, the court (clerk of superior court) decides who will be responsible for managing a person's affairs and/or property. The court could appoint a non-family member as a guardian. 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.

Are there alternatives to guardianship?

North Carolina law favors less restrictive alternatives to guardianship if possible. Some alternatives include:

Durable Power of Attorney and Health Care Power of Attorney: An adult who is able to understand what he or she is signing at the time may be able to execute these documents, giving another person the authority to handle financial, medical, or other matters for him or her in the future. Our attorneys can help prepare these documents.

Advance Directive for Natural Death (“Living Will”) and Advance Directive for Mental Health Treatment: Advance directives are legal documents that give instructions on what medical treatment a person would want or not want. Advance directives may be filed with the North Carolina Secretary of State. Our attorneys can help you with preparing and filing these documents.

Representative Payee: Individuals entitled to receive certain state or federal benefits, who are determined to be unable to manage these benefits, maybe assign an individual or agency payee to receive and manage these funds for their benefit. Examples are Social Security income, supplemental security income, and veteran's benefits.

Bank Accounts: Joint bank accounts that require both signatures for withdrawals or that have automatic payment options can be set up to manage money.

Special Needs Trust: This is a type of trust that holds money for the benefit of a person with a disability to help maintain eligibility for needs-based public benefits. An attorney can assist in setting up a special needs trust.

Home Health Care: Home health care agencies can assist people with activities of daily living, like dressing, bathing, cooking, and cleaning.

Support: People who may not be able to manage all details of their lives independently may be able to manage without a guardian if they have trusted family, social support, and community support, for instance, help with budgeting or medication reminders.

Supported Decision-Making: For some individuals, guardianship can be avoided by developing a network of trusted individuals that can provide support by assisting with decision-making.

When does the court appoint a guardian for an adult?

A guardian is appointed for an adult if the court finds by clear, cogent, and convincing evidence that a person alleged to be incompetent lacks sufficient capacity to manage his or her own affairs or to make or communicate important decisions about the person's self, family, or property. The lack of capacity may be due to mental illness, intellectual or developmental disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or a similar cause or condition. Showing poor judgment or wastefulness is not necessarily enough to show that a person is incompetent.

What is a “ward”?

A “ward” is an adult who has been adjudicated incompetent or an adult or minor for whom a court has appointed a guardian.

Who are the “petitioner” and the “respondent”?

A petitioner is a person who files a petition with the court alleging that an adult lacks the capacity to manage his or her affairs or to make and communicate important decisions about his or her self, family, and/or property and requesting that a guardian be appointed. The respondent is the adult who is alleged to be incompetent and who will become awarded if the clerk determines that he or she is in fact, incompetent.

What are the Principles of Guardianship?

The following principles have been recognized and incorporated by statute:

Guardianship should be considered only when less intrusive alternatives are not appropriate and if it will give an individual a fuller capacity for exercising his or her rights.

Guardianship should seek to preserve opportunities for the individual to exercise rights that are consistent with his or her capabilities, allowing for the possibility of error to the same degree as is allowed to persons who are not incompetent.

A person under guardianship should be involved in all decision making consistent with his or her capabilities.

What rights do incompetent adults lose?

An adult ward may lose many of the rights that adults otherwise have, though it is possible for a ward to retain certain rights and privileges through a limited guardianship. The guardian may have the authority to decide where and with whom the ward lives, what medical treatment the ward receives, how to handle the ward's money and property, how to resolve legal claims or court cases in which the ward is involved, and whether to enter into contracts on the ward's behalf. A ward may lose the privilege to drive, the right to file a court case independently, or the right to enter into contracts, among other rights. A ward loses the right to serve on a jury, possess or purchase firearms, and execute powers of attorney. A ward who wishes to keep his or her driving privilege can request a hearing with the Department of Motor Vehicles and show evidence that he or she should be permitted to drive.

What rights do incompetent adults keep?

Incompetent adults have the right to participate in decisions affecting them and make decisions to the extent they are able to do so. Incompetent adults have the right to vote and the right to marry. Under some circumstances, an incompetent adult may be able to make a will. Powers of attorney executed after a person are adjudicated incompetent and while under guardianship are not valid. Incompetent adults have the right to file motions or appeals in their guardianship cases and have the right to be represented by an attorney or guardian ad litem in these proceedings.

What are “limited guardianships”?

In a limited guardianship, an adult ward retains some rights that would otherwise be lost in guardianship. North Carolina law encourages clerks to consider limited guardianships tailored to the needs of the incompetent person.

What are the different types of guardianship in North Carolina?

Guardianships can be classified by the powers of the guardian. In the clerk of the superior court's order appointing a guardian(s), the powers and duties of the guardian(s) are outlined. Powers and duties of Guardians of the Person are outlined in G.S. §35A-1241(a). Powers and duties of Guardians of the Estate are outlined in G.S. §35A-1251 and 1253. General Guardians have the powers of both a Guardian of the Person and a Guardian of the Estate. Each of these types of guardianships should be limited to meet the specific needs of the ward, as appropriate.

Who decides guardianship cases?

Competence and Guardianship proceedings are handled by the clerk of superior court or an assistant clerk of the superior court, who presides over the hearings and makes all decisions in the case. The respondent or guardian ad litem may request a jury to decide the issue of competence, but if the respondent is determined to be incompetent, only the clerk can decide who will serve as guardian. Decisions on competence and guardianship can be appealed to the superior court.

What if someone needs emergency protection?

Every North Carolina county has a Department of Social Services, providing Adult Protective Services, which investigates allegations of abuse, self and caretaker neglect, and exploitation of adults who are disabled, meaning they cannot complete daily activities or handle their affairs or protect interests and are unable or unwilling to obtain essential services themselves. North Carolina law requires any person having reasonable cause to believe that a disabled adult is in need of protective services to report such information.

If a person is a danger to him- or herself or others due to mental illness or substance abuse, a petition can be filed with the magistrate in the person's county of residence for involuntary commitment to a medical facility.

Upon the filing of a verified petition for adjudication of incompetence, a motion may be filed requesting the appointment of an interim guardian. See below for more information.

At the McAdoo Law Group, we listen to the concerns of families and friends to better understand specific family dynamics and provide an effective plan to protect the best interest of the individual who's competency is in question while limiting the negative impacts of the litigation process – for the benefit of all involved, the individual, as well as concerned family and friends. Call us today for a consultation.

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