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When Your Aging Family Member Needs Help: Guardianship, Elder Law, and Your Legal Options

When people talk to us about the concerns they have about an aging family member, we often have to guide them through a variety of issues, including guardianship, incapacity planning, and other elder law-related topics. For many of these people, this is the first time they’ve spoken to a lawyer. The legal process itself can be intimidating and stressful, and be doubly so when you don’t have a legal background and are only acting because you want to do what is best for the people you love.

When Your Aging Family Member Needs Help: Capacity

One of the most difficult questions for people worried about their aging family members is the question of when to act. This question is difficult because it involves not only legal and medical concerns, but also issues about pride, individuality, independence, and propriety. How do you ask a parent if they feel comfortable driving themselves? How do you bring the conversation up? How do you decide when to step in and effectively force an aging parent to give up a big part of the independence they’ve had for their entire lives?

There are no simple solutions to questions like these, but understanding the legal issues involved can help point you towards some. Perhaps the most important of these is the idea of capacity. Essentially, capacity is the ability for an adult to make decisions on his or her own. If a person loses capacity, such as by becoming unconscious or suffering from a cognitive impairment, someone else will have to take on the legal responsibility of making choices for that person.

If, for example, your aging parents are still mentally capable, they can create tools that will name representatives who will make choices for them if and when they lose capacity. However, should they lose capacity without having created such tools, they will no longer be able to choose their own representatives, and a court will have to do if for them.

When Your Aging Family Member Needs Help: Guardianship

The process of naming a representative for an incapacitated person is generally known as the guardianship process. A guardian is a person who has the legal authority to make decisions on behalf of an incapacitated person, known as a ward.

The guardianship process itself must take place before a judge, or, in North Carolina, before the Clerk of Superior Court. (The clerk is a judicial official who not only performs clerical duties, but also a range of judicial duties.) Until a clerk holds a hearing and names a guardian, the incapacitated person has no one who has the legal authority to make choices on his or her behalf.

So, if your parent or loved one has already lost capacity, the guardianship process is likely the only option left to you. This process can be stressful, time consuming, and, if the court’s decisions are contested or there is some other dispute, ultimately quite expensive.

Further, if your parent or loved one is located in a different state, you’ll likely have to travel to that state to ask a court there to initiate a guardianship or conservatorship proceeding. This will involve additional expenses, travel, time, and stress.

In short, the guardianship process can be a big problem.

When Your Aging Family Member Needs Help: Planning Options

When you are confronted with the changing needs of an aging loved one, deciding what to do is only possible once you understand your options. Those options are dependent upon a number of factors, including the laws of the state in which you reside, the laws of the state in which the elderly person resides, the steps that person has or has not taken in anticipation of losing capacity, that person’s status as a capable or incapable person, and others.

If you want to know what you can, cannot, should, or should not do, your first step should always be talking to an attorney experienced in North Carolina elder law and guardianship issues. If you need advice or have yet to talk to someone about your concerns, schedule an appointment to come talk to us or or attend one of our free educational seminars. Time is often a significant issue in elder law or guardianship issues, and waiting can limit, or even harm, your ability to protect yourself and your loved ones.


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