The point of creating an estate plan is to avoid guardianship. Why? Because it is very expensive, involves the court, and opens your life and finances up to the public records. If someone you love loses capacity to make sound decisions 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 experiences cognitive decline, 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 incapacity planning documents?

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An attorney can help you file a petition for adjudication of incompetency to start the process of obtaining legal guardianship. The process is initiated by filing a petition with the Special Proceedings Division of Superior Court in the county where the person needing a guardian has resided for the prior six months. The clerk will appoint a Guardian ad Litem attorney to represent the best interests and this person will schedule a visit to assess the situation. This includes evaluating the person's cognitive abilities, inquiring about the financial situation and interviewing family members to determine the level of support received and needed in the future. This is a safeguard to ensure the person needs a guardian and that the right guardian is appointed.

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The Hearing

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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:  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: manage the ward's finances, legal issues and taxes and provide annual accountings to the court. Note: These accountings are public record.  

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General Guardian: Takes on 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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A Guardianship Attorney 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.