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When Is it Time to Consider Guardianship?

guardianshipAs an adult child, one of the most difficult things you will ever have to endure is watching your parent deteriorate  physically and/or mentally. If your parent lives long enough,  however, there is a very good chance you will need to do just that. You may also find yourself concerned about your parent’s ability to safely function independently.If you reach that point, it may be time to consider guardianship. Like many adult children, the idea of pursuing guardianship may feel as though you are taking away your parent’s  freedom; however, keep in mind that failing to take action could put your parent at risk for injury or becoming a victim of predators who prey on the elderly. Ultimately, the decision to pursue guardianship must be made by you after careful consideration of the options; however, it may be helpful to learn more about guardianship and some of the signs that may indicate it is time to consider guardianship.

What Is Guardianship?

Guardianship is a legal relationship in which someone (the guardian) is authorized by the clerk of superior court to be substitute decision maker for an incompetent adult (the ward). Incompetence is determined in a court proceeding and means an adult is unable to manage his own affairs, or is unable to make important decisions.

What Are the Types of Guardianship in North Carolina?

The type of guardianship, and the extent of power the guardian has, are both determined by a judge based on the needs of the ward. In North Carolina you could be appointed a guardian of the person, a guardian of the estate, or a general guardian.  As guardian of the person you might make decisions such as:

  • Where the ward lives.
  • What doctors can treat the ward.
  • What social services the ward receives.

As a guardian of the estate of a ward you might be given the authority to do things such as:

  • Pay bills of the ward
  • Sell property owned by the ward
  • Receive and cash retirement or Social Security checks in the ward’s name

As a general guardian you will have the authority of both a guardian of the person and guardian of the estate.

How Does North Carolina Define “Incompetent?”

Before a court will appoint a guardian, the court must be convinced that the proposed ward (your parent) meets the legal definition of incompetent. In North Carolina, “incompetent” is defined as “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 conditions.”

As a general rule, a court will require an examination and/or testimony by a physician and/or psychiatrist before making a determination that someone is incompetent for purposes of guardianship proceedings.

What Are Some Common Signs That Guardianship May Be Necessary?

The decision to petition for guardianship is a highly personal decision that only you can make after carefully considering your parent’s condition and your options. Furthermore, there is no simple test you can use to decide if guardianship is warranted. There are, however, some common signs that a guardian might be needed, including:

  • Forgetting simple things such as a close relative’s name
  • Declining health without an apparent reason
  • Not taking medications as prescribed
  • Deteriorating hygiene
  • Simple household chores not done
  • Bills piling up unpaid
  • Funds missing from accounts without explanation

How Do I Become a Guardian?

If you have made the decision that a guardian is needed, you will have to file a petition in the appropriate court. Because the guardianship process can become complicated it is advisable to work closely with an experienced North Carolina estate planning attorney. After the petition is filed you will have to notify your parent as well  other interested people that the petition has been filed.

Contact Us

For additional information, please join us for one of our upcoming free seminars. If you have additional questions about guardianship in the State of North Carolina contact the experienced estate planning attorneys at The Law Offices of Cheryl David by calling 336-547-9999 to schedule an appointment.

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