As we age, so do our parents, grandparents, and other older loved ones. At some point, you may start to become concerned that one of these older loved ones has reached the point where a legal guardian is needed. It is rarely easy to make the decision to pursue guardianship over an elderly loved one because it often feels as though you are taking away the individual’s independence. Keep in mind, however, that the consequences of failing to act could be serious, even fatal. Whether you have already made the decisions to pursue guardianship, or are still contemplating the issue, you likely have questions. Unless you have been through the process before, at the top of your list of questions is likely “How do I petition for guardianship in North Carolina?”
What Is Guardianship?
Guardianship is a legal relationship whereby one individual (the “Guardian”) is appointed by the Clerk of the Superior Court to act on behalf of another individual (the “Ward”) who has been declared incompetent. In North Carolina, there are three different types of guardianship, including:
- Guardian of the Person – this type of Guardian makes personal decisions for the Ward such as where he/she will live or what doctors will treat the Ward. A Guardian of the Person does not control the Ward’s money or assets.
- Guardian of the Estate – this type of Guardian makes financial decisions for the Ward and controls the Ward’s money and assets. For example, a Guardian of the Estate would decide what bills to pay for the Ward and what assets to retain or sell. A Guardian of the Estate does not make personal decisions for the Ward.
- General Guardian – this type of Guardian makes both personal and financial decisions for the Ward.
Considerations before You Petition for Guardianship
For a Guardian to be appointed, the court will have to be convinced that the proposed Ward meets the legal definition of “incompetent” in North Carolina. An individual is considered to be incompetent in North Carolina if he/she “lacks sufficient capacity to manage his or her own affairs OR to make or communicate important decisions concerning their person, family, or property.” Before you make the commitment to pursue guardianship, you should make an effort to determine if the individual in question will meet that definition. Speak to doctors, therapists, and close family members. Because guardianship is considered the most restrictive option, courts will only approve a guardianship petition if other, less restrictive options, will be insufficient to protect the proposed ward.
Getting Started with Your Petition for Guardianship
If you have decided to proceed with your request to be appointed a Guardian, the first step is to actually file a formal Petition for Guardianship with the Clerk of the Superior Court in the county where the Respondent (the proposed Ward) is a resident. In the Petition you must allege that the Respondent is incompetent and explain why you believe this to be true. Because incompetence is a legal standard, it is in your best interest to consult with an experienced attorney before getting started with the guardianship process. When you file the Petition you will need to serve the Respondent with a copy along with close family members. The Respondent has a right to be represented by an attorney and to object to the appointment of a Guardian. In addition, anyone who is entitled to notice of the proceedings may also object to a Guardian being appointed.
The Guardianship Hearing
After you file the Petition, a hearing will be scheduled. In the interim, the court may order medical and/or psychological evaluations of the Respondent to help the court determine if the Respondent is incompetent. The results of those evaluations, along with testimony and evidence presented at the hearing, will help the Clerk decide the issue of incompetence. If the Respondent is found to be incompetent, the Clerk will decide what type of Guardian should be appointed as well as whether you are an appropriate person to name as the Respondent’s Guardian.
For additional information, please download our FREE estate planning worksheet. If you have additional questions about filing a Petition for Guardianship, contact the experienced North Carolina estate planning attorneys at The Law Offices of Cheryl David by calling 336-547-9999 to schedule an appointment.