Many people are familiar with general estate planning documents and terms such as last will and testament, health care power of attorney, living will and durable power of attorney. However, another term or process that many people are not familiar with in this area of their lives is guardianship.
What is Guardianship?
Guardianship is a legal relationship under which a person or agency (the guardian) is appointed by the court to make decisions and act on behalf of another person (the ward) with respect to the ward’s personal or financial affairs because the ward lacks sufficient capacity to make or communicate important decisions concerning their person, property and/or they lack sufficient capacity to manage their personal or financial affairs.
What is the North Carolina Law for Guardianship?
Every North Carolina guardianship case is different, however, two of the most common occurrences involving guardianship is when an adult child needs to help their elderly parent make health care and residential decisions and that person does not designate anyone as their power of attorney; and the other is when a parent needs to continue to make decisions for their special needs child who is turning eighteen and by law can’t make their own decision.
To initiate a guardianship proceeding, one would have to file a petition with the Special Proceedings Division in Superior Court. The Clerk of Superior Court is the judge in guardianship proceedings. After the petition is filed, the clerk of superior court will issue a notice of hearing and will also appoint an attorney, referred to as a Guardian Ad Litem, to represent the respondent.
What are the Responsibilities of the Guardian Ad Litem?
The Guardian Ad Litem must personally meet with the respondent as soon as possible and make reasonable efforts to determine the respondent’s wishes regarding the guardianship proceeding and must present the respondent’s express wishes to the Clerk of Superior Court at the hearing. The Guardian Ad Litem may make recommendations to the Clerk of Superior Court regarding the respondent’s best interests, even if they differ from the respondent’s express wishes. The Guardian Ad Litem does provide the court with their opinion as to the respondent’s competency and if they need a guardian, who would be the best person or agency to serve as such. The Guardian Ad Litem can also recommend what type of guardian the respondent needs and whether limited guardianship is in the best interest of the respondent and if so what rights, powers and privileges they should retain.
Who Makes the Decision on Appointing a Guardianship?
Once the Clerk of Superior Court has heard from all interested parties, they make a decision as to whether a respondent is incompetent and if they need a guardian and if they do who would be the best person or agency to serve as the guardian. The Clerk of Superior Court may appoint a guardian of the person, a guardian of the estate or a general guardian. A respondent who has no estate or a very small estate more than likely would only need a guardian of the person. A guardian of the person has the authority to make decisions in most areas of a respondent’s personal life, which includes but is not limited to, health, residential, employment and social decisions. Some respondents may only need assistance with financial decisions and only need a guardian of the estate. A general guardian would have the authority to make personal and financial decisions for a respondent.
Our Raleigh Law Firm Can Help You with Guardianship
I have been serving as a Guardian Ad Litem for Wake County since 2008 and have great experience with guardianship. If you have any questions about guardianship or need representation in a guardianship proceeding call 919-615-2473 or contact the attorneys of Kirk, Kirk, Howell, Cutler & Thomas, L.L.P. to discuss your matter.
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