For an adult child, there are few things more emotionally devastating and draining than watching the natural aging process turn a parent back into a child. If you see signs of this happening to your parent, however, the worst thing you can do is ignore the situation. It will not get better. In fact, failing to intervene could result in serious physical harm to your parent or financial victimization by predators who prey on the vulnerable. If you believe that your parent is no longer able to safely care for himself/herself it may be time to consider guardianship. Because every situation is unique, you should consult with an experienced North Carolina elder law attorney to determine what legal steps you need to take in order to petition for guardianship of your parent. In the meantime, however, it may be beneficial to learn more about the guardianship process in North Carolina.
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”). A guardian is a person who has been appointed by a court to have the care and custody of a minor or of an adult person who has been legally determined to be incapacitated. In North Carolina, there are two types of guardianship – guardianship of the person and guardianship of the estate. If you are appointed to be a guardian of the person, you might be entitled to make decisions regarding things such as where the ward lives, what doctors may treat the ward, and even whether or not the ward is allowed to operate a motor vehicle. As a guardian of the estate, you will have authority over the ward’s finances and might be able to decide what bills are paid, how assets of the ward are invested and even what assets can be sold. You can be appointed a guardian of the person, guardian of the estate, or both. In addition, the court may grant you full guardianship authority or limited authority. The extent of the power granted to a guardian depends on the need of the ward.
Before a court will consider appoint a guardian, the court must be convinced there is a need or one. That requires a showing that the proposed ward is 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.
Petitioning for Guardianship
To become a guardian you must petition a court and be granted guardianship authority. To do that, a petition is filed in the appropriate Superior Court. The petition must allege that the Respondent (your parent in this case) is incapacitated and in need of a guardian. You will also need to explain why you should be appointed as the guardian. The petition is then served on the Respondent as well as other close family members, such as a spouse. The Respondent, or other interested parties, may file a written objection to the petition. A hearing is scheduled when you file the petition.
Prior to the hearing, the clerk may order medical, psychological, social work and other evaluations of the Respondent. Both the Petitioner and the Respondent also have the right to request such evaluations at the time the petition is filed. The results of any and all evaluations/examinations are sent to the parties and the court.
The hearing will be before a judge or a jury. At the hearing you will need to provide sufficient evidence to convince the judge/jury that the Respondent meets the legal definition of “incapacitated” in order for a guardian to be appointed. You will also need to convince the judge/jury that you are an appropriate person to appoint as guardian. The orders you receive from the court will explain the type and extent of your guardianship authority.
Please download our no cost estate planning worksheet for additional information. If you have additional questions about guardianship 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.