Are you currently considering guardianship for a parent or other elderly loved one? If so, you are undoubtedly experiencing the emotional heartache that goes along with the realization that your loved one may need a guardian. Like most people in your position, you are likely experiencing feelings of guilt at the idea of taking away your parent’s freedom and independence; however, try to keep in mind that if your loved one truly does need a guardian, failing to act could result in serious injury and/or victimization by those who prey on the elderly and disabled. Once you have accepted the need for a guardian, you will need to begin the process of petitioning to become the guardian. If you are unfamiliar with the guardianship process, you will find that navigating the judicial system can be difficult. The best way to learn more about North Carolina guardianship law, and to ensure that your petition for guardianship has the best chance of being successful, is to work closely with an experienced North Carolina guardianship attorney.
What Is Guardianship?
North Carolina defines guardianship as “a legal relationship under which a person or agency (the guardian) is appointed by a court to make decisions and act on behalf of another person (the ward) with respect to the ward’s personal or financial affairs because the ward, due to a specific mental or physical impairment, lacks sufficient capacity to make or communicate important decisions concerning his or her person, family, or property or lacks sufficient capacity to manage his or her personal or financial affairs.”
When Should Guardianship Be Considered?
Deciding to pursue guardianship over a parent, in particular, is a highly personal and extremely sensitive decision that can only be made by you. There are, however, some common signs that it might be time to consider guardianship as an option, including:
- Forgetting names of close family and/or names for common items
- Unpaid bill or services being disconnected.
- Excessive and unexplained injuries
- Missing or unaccounted for assets and/or money
- Rapid and/or significant decline in personal hygiene
- Severe mood swings
Keep in mind that guardianship is typically considered to be the most restrictive option. As such, a judge will be reluctant to appoint a guardian without sufficient evidence that one is needed and that another, less restrictive, option will not suffice.
North Carolina Guardianship Law
If you are considering petitioning for guardianship in North Carolina, you need to have at least a basic understanding of the North Carolina guardianship laws. Any competent adult may petition to become a guardian; however, precedence is given to close family members if more than once person petitions. The Clerk of Superior Court (CSC) (or an Assistant CSC designated by the CSC) acts as a “probate judge” in guardianship and estate matters and has exclusive, original jurisdiction over all proceedings seeking the appointment of a guardian for an allegedly incapacitated adult. Therefore, the petition for guardianship must be filed with the Clerk in the county where the Respondent (the allegedly incapacitated person) is a resident. The Respondent has the right to an attorney throughout the proceedings and has a right to oppose the appointment of a guardian. For the judge to appoint a guardian, it must first be proven that the Respondent is “incapacitated” according to North Carolina’s definition of the term. North Carolina law uses a three component “test” to determine incapacity:
- Cognitive/communicative component — refers to an individual’s inability to “make or communicate important decisions” concerning his or her person, family, or property.
- Functional component — refers to an individual’s functional inability to take care of his or her essential personal needs or financial affairs.
- Status component — refers to the mental or physical cause of the individual’s inability to make or communicate important decisions or manage his or her affairs.
The court may order independent testing on the Respondent in an effort to determine incapacity. All evidence, testimony, and test results will be presented at a hearing. If the court is convinced that the Respondent is incapacitated, and that a guardian is necessary, the court will then consider whether you are an appropriate choice for guardian.
If you have additional questions about North Carolina guardianship laws, contact the experienced North Carolina estate planning attorneys at The Law Offices of Cheryl David by calling 336-547-9999 to schedule an appointment.