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What Is Guardianship?

No matter how old we get, we don’t seem to want to accept the fact that our parents are even older. More accurately, we don’t want to accept the fact that our parents might be suffering the physical and mental symptoms of old age. As a result, we often overlook some of those signs for as long as possible. While this may be understandable, it can also be dangerous. Ignoring the fact that your parent may need help could lead to physical injuries or financial victimization. Instead of burying your head in the sand, it may be time to consider guardianship. Before you can decide whether guardianship is right in your situation, you need the answer to the most basic question “What is guardianship?”

Life Expectancy and the Aging Process

You may have heard some of the startling – and frightening – figures relating to the prevalence of Alzheimer’s in the United States in recent years. Experts are working hard to try and figure out what causes Alzheimer’s, how to cure it, and why we are seeing so many more cases of the disease in recent years than in years past. One factor is the simple fact that there are a lot more elderly individuals alive today than in generations past. In fact, the average life expectancy of an American has almost doubled in the last century. While living longer is certainly something to look forward to, the fact that we are living longer does not mean we are not suffering the same problems related to the natural aging process. On the contrary, it tends to mean that we are suffering those problems for longer, and often to a greater extent. Consequently, the odds that a parent may need you to step in at some point are higher now than they were in years past.

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.

If you decide to pursue guardianship, you may petition to become any of the available types of guardian based upon what your parent needs.

The “Least Restrictive” Standard

Legally, guardianship is considered to be the most restrictive of all options available to help an incompetent adult. If a court must decide the issue of guardianship, the court will use the “least restrictive” standard when making that decision. The “least restrictive” standard simply means that a Guardian should only be appointed if other, less restrictive, options have either been tried and did not work or will clearly be inadequate to protect the proposed Ward.

How Do I Pursue Guardianship in North Carolina?

Guardianship requires a court approval. 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) 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. A Petition for Guardianship can become complicated and/or adversarial if all family members are not in agreement on the matter. The best way to ensure that your guardianship proceedings proceed along as smoothly as possible is to work closely with an experienced North Carolina elder law attorney.

Contact Us

If you have questions or concerns regarding guardianship in North Carolina, contact an experienced North Carolina elder law attorney at The Law Offices of Cheryl David by calling 336-547-9999 to schedule an appointment.

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