Guardianship is a process which establishes a legal relationship between a capable adult, agency, or qualified organization and an incompetent person, in order to protect that person. The guardian represents a person in decision-making when they are unable to make decisions on their own.
The North Carolina Judicial Branch defines it as “a legal relationship in which a person is appointed by the court to make decisions and act on behalf of a person who does not have adequate capacity to make such decisions involving the management of personal affairs, property, or both.”
The role of a guardian can fluctuate depending on the needs of the incompetent person. Guardians must always act in the best interests of the wards. Here, we review the guardianship process on a high level, as well as some of the frequently asked questions.
What Qualifies As Incompetence?
If a person has made a series of irrational decisions, like giving out their money to undeserving people, or purchasing unnecessary items, they cannot automatically be said to be incompetent. They are said to be incompetent if their decisions endanger them physically, psychologically, or financially.
You need proof that the person cannot make decisions concerning their property, personal affairs, or both. This proof can be filed in the form of an evaluation report, and a multidisciplinary team appointed by the court to evaluate the incompetent person generates the incompetency evaluation report.
Identifying and Appointing a Guardian
The process of identifying and appointing a guardian begins with realizing that the incompetent person needs help. You must prove that the person is incompetent, which can be because of a developmental condition, mental illness, or any other situation which makes one incapable of making sound decisions. However, being sick or living with a developmental condition does not automatically mean you are incompetent.
The guardian may be a family member, friend, neighbor, or individual who wishes to take care of the incompetent person’s affairs. The incompetent person may also nominate his or her guardian. However, if he or she is incapable of nominating a guardian, the Court can identify a guardian.
The Guardianship Petition
Any person who cares about the person exhibiting incompetency can initiate the guardianship process. Such a person becomes the petitioner and is required to file a petition in court.
Once the petitioner files the necessary documents with the court and pays the petition filing fee, the court appoints a guardian ad litem, who represents the incompetent person and informs the court about the respondent’s interests. In the petition, the incompetent person is identified as the respondent.
If the respondent prefers to be represented by his or her attorney, the court can decide if the guardian ad litem will participate in the petition or not. As the petitioner, you may choose an attorney to represent you or represent yourself.
A date for hearing the petition is set where both the respondent and the petitioner make their presentations, which is usually 3 or 4 weeks from the date when the petition is filed. During this time, the respondent and the next of kin are served to help them plan to attend the petition hearing.
What If The Threat Is Immediate?
If the respondent’s attorney or the petitioner feels the respondent is in immediate physical or financial danger, he or she should notify the court. The court may schedule an emergency hearing in which a decision to appoint an interim guardian is discussed.
The court uses the evidence they present together with the evaluation report to determine if the respondent is incompetent or not. The evidence may come from a witness willing to testify in court during the petition hearing. It may also be a report from a doctor or psychologist stating the need for the respondent to have a guardian.
If the person is found to be incompetent, the court appoints a guardian who may be the petitioner or another qualified adult or agency. However, no action is taken if the court rules that the respondent is competent.
Can Guardianship Be Modified?
Yes! The law allows for modification of guardianship. You can file a motion for modification if you are unsatisfied with the appointment or a need to modify arises during the guardianship period.
Does Guardianship Ever End?
The guardianship may end if the guardian resigns or the ward legally regains competence. The Court may also remove you as a guardian in certain circumstances. In addition, if the ward dies, the guardianship ends.
What Are My Financial Obligations As A Guardian?
As a guardian, you are not obligated to support the ward financially out of your own funds. Also, you do not take liability for the ward’s debts. In addition, as a guardian, you can receive reasonable reimbursement for expenditures you incur when managing the ward’s estate.
Types of Guardians In North Carolina
Your responsibilities as a guardian depend on the type of guardianship you assume or the orders given on appointment. Here are the types of guardians under North Carolina law:
- Guardian of the Estate – The guardian of the estate is in charge of the businesses, estates, investments, and properties of the ward.
- Guardian of the Person – This is the guardian appointed for the custody, care, and control of the ward. You are not involved in decisions concerning the ward’s money and properties.
- General Guardian – A general guardian takes charge of decisions concerning the ward care, control, custody, and money and property issues.
- Guardian for Minors – A guardian may be appointed if the parents of the minor are deceased or if the parents lose their parenting rights. When appointing a guardian for a minor, the court does not hold proceeding to determine incompetence since all underage children are deemed legally incompetent.
Our Estate Planning Team Can Help
If you are considering engaging in the guardianship process, our team here at David E Anderson PLLC can talk through your options. Call us today at 910-509-7287 or fill out our contact form to schedule a consultation today.