Incompetency and Guardianship
When a person loses mental or physical capacity, they might need a guardian appointed to oversee their well-being. During this process, the Clerk of Superior Court will evaluate and review a person’s capabilities to determine whether to appoint a guardian to take responsible for many important tasks for the individual. Regardless of the outcome, it is often a very difficult time for both the person being evaluated and their family members.
Having a guardian appointed in North Carolina is a two-step process. First, the person must be deemed incompetent by the Clerk of Court. Then, if the person is deemed incompetent, the second step of the process is having a guardian appointed.
There are three types of guardians: Guardian of the Person, Guardian of the Estate, and General Guardian. The Guardian of the Person makes healthcare and placement decisions. The Guardian of the Estate makes financial decisions. The General Guardian acts as both the Guardian of the Person and Guardian of the Estate. In most cases, the person seeking to become the guardian of their loved one is seeking to become the General Guardian.
As knowledgeable and competent attorneys, we can help alleviate much of the complexity and anxiety of the guardianship process. Whether your guardianship proceeding is in Brunswick County, New Hanover County, or Pender County, the attorneys at Atlantic Coast Law can confidently lead you through the appointment procedures, providing both assurance and comfort to the entire family. We represent individuals seeking to obtain guardianship over individuals no longer able to care for themselves. We also represent individuals listed as “interested parties” who wish to participate in the guardianship litigation.
Commonly Asked Questions About Incompetency and Guardianship
Q. How does the Court determine if someone is incompetent?
A. The Clerk of Court looks at many factors to determine if a person is incompetent. The Court focuses on whether a person can perform routine daily activities such as preparing meals, taking medication as prescribed, maintaining proper hygiene, and performing household chores. The Court also considers the person’s ability to make rational financial decisions by reviewing their ability to manage their investments, manage their bank accounts, and pay their bills. Lastly, the Court considers whether the person can take the steps necessary to protect themselves from harm and exploitation.
The Court will follow THESE laws when determining incapacity.
Q. What does a Guardian do?
A. A “guardian” is appointed by the Clerk of Superior Court to make decisions for a person who is determined incompetent (the “ward”). We represent individuals involved in guardianship appointments in Brunswick County, New Hanover County, and Pender County. There are three types of guardians in North Carolina: 1) Guardian of the Person 2) Guardian of the Estate, and 3) General Guardian.
Guardian of the Person is a guardian that decides issues about personal care, like housing and medication. The guardian cannot decide how to handle the ward’s finances.
Guardian of the Estate is a guardian who manages the persons assets, pays their bills, and makes the financial decisions.
General Guardian has the power to decide issues relating to both finances and personal care. This is a combination of Guardian of the Person and Guardian of the Estate.
Q. Who Should Serve As Guardian?
A. When determining who should serve as guardian for your loved one, it is important to consider the preference of the person who needs the guardian, and what is best for them. Although a guardian is most-commonly a family member, one should also consider location (the family member may not live close), and whether that potential guardian has the time and energy to provide to the disabled person. If no eligible candidate exist to be guardian, there are professional guardians who can be hired.
Q. What is a Standby Guardian?
A. A Standby Guardian is someone the parent of a minor child designates to become the guardian of the minor child for up to 90 days. This guardianship can become effective either immediately, or upon the incapacity, debilitation, or death of the parent.
Designating a Standby Guardian of your minor child can be a key element of an estate plan because it increases the chance that your minor child will be cared for immediately should the parent become unavailable unexpectedly. Designating the Standby Guardian today can also reduce the chances of a feud between relatives over the care of your minor child.
Q. Do I Need Ongoing Guardianship Representation?
Once you have been appointed a Guardian through the Clerk of Superior Court, there are ongoing obligations to the Court. We advise clients on 1) maintaining bond, 2) Filing Annual Reports, 3) maintaining Proper Financial Records. We represent clients in the form of an “as-needed” basis, or we can take over the entire guardianship filings completely.
Q. How Can We Help?
Navigating the court system in the Wilmington-area can seem like you are on another planet. To ensure that the process goes smoothly and quickly, you should consider hiring someone with extensive experience, skill, and dedication. Prompt communication, sensitivity, and sound strategy is how we help guide our clients through the guardianship process.