The time may come at some point in your life when you realize your parent is showing signs of dementia or another type of incapacity. At that point, you will have to make a difficult decision. Do you step in and assert control over his/her affairs or do you stand back and hope things improve. If your parent is truly suffering from incapacity, the reality is that the situation will not get better. On the contrary, the situation is very likely to deteriorate rapidly. It may be time to discuss guardianship with an elder law attorney.
What Is Guardianship?
Adult guardianship is a legal procedure in which a court determines that a person is incapable of making decisions and/or managing financial affairs because of incapacity, and that the person is in need of protection. If the court finds a person to be unable to make decisions due to incapacity, it will appoint someone to act on behalf of the incapacitated person, making decisions about the individual’s person, property or both. The legal term often used to refer to the individual in need of assistance is a “ward” while the person appointed to provide the assistance is a “guardian.”
How Does the Law Define Incapacity in North Carolina?
In order for a court to determine that a guardianship is warranted, the court will first need to be convinced that the individual (in this case your parent) is legally incapacitated. In the State of North Carolina, G.A. § 35A-1101 defines incapacity as follows:
“Incompetent adult” means an adult or emancipated minor who lacks sufficient capacity to manage the adult’s own affairs or to make or communicate important decisions concerning the adult’s person, family, or property whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition.
How Do I Know If Guardianship Is the Answer?
Unfortunately, there is no bright line rule or test that can be administered that tells you when a parent, or other loved one, needs a guardian. There are, however, some common signs that indicate it might be time to consider pursuing guardianship. For example, if you notice:
- Forgetfulness that goes beyond what tends to come with aging
- Bills stacking up unpaid or services getting shut off
- Medication not taken as prescribed
- Dramatic weight loss
- Deterioration of personal hygiene habits
- Drastic mood swings
- Excessive injuries without a cause
- Items missing from the home
- Funds missing from financial accounts
How Do I Become a Guardian?
Only a judge can appoint a guardian. Therefore, to become your parent’s guardian you will need to petition the appropriate court. Your petition will need to explain why your parent is in need of a guardian and why you are the best person for the job. You will also need to serve your parent with a copy of the petition as well as other “interested persons,” such as a spouse and close family members with a copy of the petition. The proposed ward (your parent) is entitled to an attorney and may file an objection to the appointment of a guardian. Anyone who is entitled to notice of the proceedings may also object. Your parent may undergo physical and/or mental examinations as a part of the guardianship proceedings. Ultimately, the court will set the matter for a hearing at which time evidence will be presented and testimony taken in an effort to determine if a guardian is needed. If the judge (or jury) is convinced a guardian is necessary, one will be appointed. The judge will also decide if you are an appropriate choice for guardian and the extent of your authority as a guardian.
How Can an Elder Law Attorney Help?
The guardianship process can be lengthy and is often emotionally draining. From the beginning you may be unsure if pursuing guardianship is the right thing to do. An experienced North Carolina elder law attorney can evaluate the facts and circumstances of your situation and provide you with both advice and guidance. If, after consulting with your attorney, you decide that guardianship is the best choice, your elder law attorney can guide you through the process to ensure that it proceeds as smoothly as possible.
For additional information, please join us for one of our upcoming free seminars. If you have additional questions about guardianship proceedings in the State of North Carolina contact the experienced elder law attorneys at The Law Offices of Cheryl David by calling 336-547-9999 to schedule an appointment.