In certain situations, it may be necessary for a person to be placed under someone else’s care. This can happen for a variety of reasons, but the end result is a type of legal relationship that allows one person to take care of another. But why is a guardianship necessary, and how exactly does the process work in North Carolina?
In this brief blog, we’ll go over the basics of guardianship, how it works in North Carolina, and how you can navigate guardianship or even prevent it for yourself. Read on for more info!
What Is Guardianship, Exactly?
If you simply look up guardianship on Google, you may find a variety of similar but different definitions. These are based on various states’ legal definitions, so it’s best to pick a certain definition for our purposes. For our blog, we’ll use the definition provided by the North Carolina Judicial Branch:
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.
With this definition, we can get a clear understanding of the purpose of guardianship. When most people think of guardianship, they think of a young child that may need a guardian to handle their affairs before adulthood. While this is certainly a reason that a guardian may be needed, it could also be the result of some sort of medical condition that severely limits an individual’s ability to make decisions for themselves. This often relates to older people but can include people of all ages. Below are some of the situations/conditions where guardianship may be introduced:
- Epilepsy
- Autism
- Inebriety
- Mental illness
- Intellectual/developmental disability
- Senility
- Certain injuries or diseases
What Does A Guardian Do?
Based on the initial definition, it’s easy to assume that a guardian is supposed to make all the decisions for the person under their care. However, a guardian should not completely control the life of the individual (also called the ward). According to the North Carolina Judicial Branch, the guardian should allow the ward to make as many decisions about their life as possible. The ward should be allowed the same possibility of error as someone not deemed incompetent.
Under guardianship, an adult ward may lose some of the rights they would otherwise have, though they will be able to keep some through a limited guardianship. However, they can lose some major abilities like serving on a jury, possessing a firearm, certain monetary and property decisions, choosing the type of medical treatment they receive, and more. This is why guardianship is a major legal status that needs to be handled with extreme care.
Are There Different Types Of Guardianship In North Carolina?
Yes! There are three general types of guardianship according to the North Carolina Judicial Branch. They are Guardians of the Person, Guardians of the Estate, and General Guardians. General Guardians hold the powers of both the Guardians of the Person and Guardians of the Estate.
How Does One Become/Recieve A Guardian?
Since guardianship is granted on the presumption that an individual is found to be incompetent to manage their own affairs, a petition to find someone incompetent has to be filed. After filing the petition, a hearing will be held where the petitioner will be responsible for presenting clear, cogent, and convincing evidence that the respondent is incompetent. For more information about filing or the hearing process, visit the North Carolina Judicial Branch website here.
Are There Alternatives To Guardianship?
Yes! In fact, guardianship should be the last resort for an individual after all other possibilities are considered. Some alternatives to guardianship include the following:
- Advance Directives
- Durable Power of Attorney/Health Care Power of Attorney
- Representative Payee
- Special Needs Trust
- Home Health Care
- Supported Decision Making
If you are considering guardianship, try speaking to legal professionals about all of the available options before making a major decision.
Trust Our Team With Your Guardianship Needs!
Whether you are looking for more information about guardianship or feel ready to file, our team at Freedman Thompson, Witt, Ceberio & Byrd, PLLC are ready to help. We can give you in-depth information and informed guidance regarding your specific situation. If you do decide on guardianship, we can walk you through each step to make the process as simple and smooth as possible.
To learn more, please contact our team today via phone, email, or through a visit to our office!