In North Carolina, adult guardianship is a legal process through which a court appoints a guardian to make decisions on behalf of an incapacitated adult (ward) who is unable to manage their own affairs. These are delicate situations that require careful consideration and compassion to help you and your loved ones make the necessary arrangement.
Guardianship preserves dignity and respect while ensuring the necessary decisions are being made while the ward is unable to do so themselves. Working with a North Carolina attorney who handles guardianship designations brings peace of mind to an otherwise concerning situations.
There are two main types of guardianship for incapacitated adults in North Carolina.
- Guardian of the Person: A guardian appointed to make decisions regarding the ward’s personal care, health, and living arrangements.
- Guardian of the Estate: A guardian appointed to manage the ward’s financial affairs, assets, and property.
Defining Incapacity to Establish Guardianship
An adult is considered incapacitated if they are unable to manage their own affairs due to mental illness, intellectual disability, physical incapacity, or other factors. The court will determine the extent of the incapacity based on evidence provided during the guardianship proceedings.
Initiating Guardianship Proceedings
Guardianship proceedings are typically initiated by filing a petition with the clerk of court in the county where the alleged incapacitated person resides. The petitioner may be a family member, friend, healthcare provider, or other interested party.
Appointing a Guardian in North Carolina
Once a petition is filed, the court will schedule a hearing to determine whether the adult is incapacitated and whether guardianship is necessary. If the court finds that guardianship is warranted, it will appoint a guardian, either an individual or a public or private agency, to act on behalf of the ward.
Duties and Responsibilities of a Guardian
A guardian has a legal and fiduciary duty to act in the best interests of the ward and to make decisions that promote the ward’s well-being and autonomy to the extent possible. The specific duties and powers of the guardian are outlined by the court and may vary depending on the circumstances of the case. Acting outside of these duties could result in significant penalties, fines, and removal of guardianship responsibilities.
Court Oversight for North Carolina Guardianship
The court maintains oversight of guardianship arrangements to ensure that the guardian fulfills their duties appropriately and that the rights of the ward are protected. The guardian may be required to file periodic reports with the court detailing the ward’s status and any actions taken on their behalf.
Termination or Modification of Guardianship
Guardianship may be terminated or modified if the incapacitated adult regains capacity, if the guardian is found to be unfit or unable to fulfill their duties, or if circumstances change such that guardianship is no longer necessary.
Obtaining Legal Representation
Incapacitated adults have the right to legal representation and are appointed a Guardian ad Litem to assist them through the guardianship proceedings. Additionally, guardians may benefit from seeking legal advice to understand their rights and obligations under North Carolina law.
It’s important to note that guardianship is a serious legal matter with significant implications for the rights and autonomy of the incapacitated adult. Individuals involved in guardianship proceedings should seek guidance from a qualified attorney familiar with North Carolina’s guardianship laws.
