A guardianship is an important legal tool that allows the Clerk of Superior Court to appoint one person or entity to make decisions on behalf of an incompetent adult (the ward). Guardians are typically appointed in instances of incapacity or disability. Say for example, an individual suffers a tragic accident and is placed in a medically induced coma to sustain further injuries. For the individual to have their personal wishes fulfilled while in a coma, the person must have a durable power of attorney and medical directives already in place prior to the accident. If the individual does not have those documents already in place, the court will appoint a guardian to make both financial and personal decisions for the comatose patient.
Types of Guardianships
North Carolina has three different types of guardianships: guardian of the person, guardian of the estate, and general guardian. Each of these guardianships have different stipulations that limit the guardian’s decision making power. The guardian of the person makes decisions about the ward’s personal care and well-being, such as housing and medical decisions. However, a guardian of the person is prohibited from handing the ward’s money. The guardian of the estate is only allowed to handle the ward’s finances and cannot make decisions about the ward’s personal care and well-being. Finally, a general guardian does not have the same limitations as the previously mentioned guardianships. General guardians have the power to make personal decisions for and handle the finances of the ward.
Deeming Someone Incompetent
There is a process to deeming an adult incompetent. First, a petition must be filed seeking to have someone declared incompetent. The person in question is entitled to a jury trial or the matter will be heard before the Clerk of Superior Court. Usually, there must be medical or psychological evidence to assist the jury or Clerk in deciding whether or not the person no longer has the ability to make decisions or care for himself.
Becoming a Guardian
Obtaining guardianship is also a process. Courts make their decisions based on the expressed wishes of the ward. In the event the ward is not able to express his or her wishes, the court will make a decision based on pre-incapacity documents (power of attorney or will). There are requirements that a person must meet in order to be considered by the courts for guardianship. In order to be considered for guardianship an individual must be qualified to serve and be a legal adult with no felonies or gross misdemeanor record implicating dishonesty (bribery, forgery, etc.).
Upon the court deeming that a person is qualified to act as a guardian, it is important that an individual seeks out a qualified family attorney. The attorney can execute a durable power of attorney and a duly probated will. Finally, the last step is to seek out the proper forms to fill out to obtain guardianship.