We often face a time in life when a parent or other loved one becomes mentally incompetent or incapacitated and is unable to handle his or her own affairs. This is usually due to old age or dementia. However, we have seen many cases where a legal guardianship is necessary for someone who is in a car accident or suffers from a debilitating illness or injury.
When Does Guardianship Become Necessary?
What is the standard for obtaining a guardianship? In general, the Court is trying to determine if the person lacks capacity to manage his/her own affairs or to make or communicate important decisions concerning his/her person, family or property. Often, this is clear due to the person’s medical condition.
However, in many cases, there is conflicting testimony about the person’s mental state and the person’s actual need for a guardian. With a person in the beginning stages of Alzheimer’s, there are likely to be good days and bad days. On the day of the hearing, a guardianship petition can be denied because the person is having a good day mentally and contests the need for a guardianship.
This is where an experienced Raleigh attorney is necessary to present your case. In close cases, it is often necessary to subpoena witnesses and put the entire story before the Court in order to convince the Court that there is a true need to establish legal guardianship.
How Do You Become a Legal Guardian?
How does the guardianship process work? We start with a petition requesting that the person be determined incompetent and request that our client be appointed as guardian. The next stage is to notify all other next of kin of the petition. Also, the Court will appoint a guardian ad litem to represent the interests of your loved one. The guardian ad litem is often a local attorney who investigates the matter and reports back to the Court on whether a guardian is needed. Obviously, the guardian ad litem has significant sway with the Court.
Thus, the case gets much more complicated when the guardian ad litem reports that a guardian is not needed. This will clearly result in a contested hearing.
At the guardianship hearing, the Court hears from you, the guardian ad litem and possibly the person over whom you are seeking guardianship. The cases are often difficult and emotional since you are usually dealing with other family members.
In that light, please understand that family members often fight to be the appointed legal guardian. In other words, there are often two important parts of the guardianship hearing: (1) is a legal guardian really needed for your loved one; and (2) who will be appointed as the legal guardian. The Clerk of Superior Court makes these decisions.
Do You Need Legal Help with Guardianship?
If you need to become legal guardian for a loved one, it is important to hire counsel who is experienced in elder law and estate law. Kirk, Kirk, Howell, Cutler & Thomas, LLP have extensive experience working with families working through this unfortunate hardship.
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