What Is Guardianship Under North Carolina Law?

What Is Guardianship Under North Carolina Law?

Most people don’t understand guardianship. Once you’re 18 years, the law deems you an adult, and to a large extent, you’re allowed to make your decisions. However, there are times and instances where a person loses the mental capacity to make choices. These decisions are usually about their well-being and welfare.

When a person can no longer make sound decisions, their welfare will go into the hands of an immediate family member or relative. North Carolina law refers to this as guardianship and it primarily applies to elderly citizens. The guardian makes decisions for the incapacitated person.

This article takes an in-depth look at guardianship under North Carolina laws. Our Charlotte elder law lawyers are experts in elder law and guardianship. We can help you navigate the process involved, so do not hesitate to reach out to us.

Understanding Guardianship

Guardianship entails a court-designated individual or agency, known as the guardian, assuming the responsibility of making decisions for someone unable to manage their personal affairs, property, or both. This legal arrangement becomes essential when a person lacks the capacity to make these decisions independently.

To establish a guardianship, the prospective guardian must initiate a legal process. If the court deems the individual in question incompetent, the petitioner is appointed as their guardian, becoming their advocate and surrogate decision-maker. Despite this, the guardian is required to involve the ward in decisions that affect them whenever possible.

The law mandates that guardians ensure wards can exercise their rights to the extent of their understanding. This means wards can still make decisions on matters they comprehend, allowing them the same freedom to make mistakes as anyone else. Guardians are there to safeguard the ward’s well-being, but they must not impose their own choices on them.

Are Guardianship and Power of Attorney the Same Thing?

A guardianship is very different from a power of attorney. With a power of attorney, individuals can appoint someone to help them make crucial decisions and manage their affairs through a written document, bypassing the need for court intervention.

In contrast, guardianship places the decision-making power solely in the hands of the court, which selects a guardian to oversee the affairs and property of the ward. Often, the court may even appoint a non-family member to fulfill this role. Given the stringent nature of guardianship, our Charlotte family law attorneys strongly recommend exploring all possible alternatives before proceeding with a petition. Guardianship should only be considered when no other feasible options are available.

What Are My Alternatives?

North Carolina law encourages you to explore less restrictive alternatives to guardianship whenever possible. Here are some options to consider:

Power of Attorney

Any adult with the mental capacity to understand their actions can sign these documents. Assigning a durable power of attorney and health care power of attorney empowers someone to manage financial, medical, and other matters on their behalf. Our Charlotte elder law attorneys are available to assist in preparing these documents.

Advance Directives

Advance directives are legal documents specifying the medical treatments a person would or would not want. You can obtain these forms from the North Carolina Secretary of State and file them with the office afterward.

Representative Payee

For individuals who can no longer manage their state or federal benefits, such as Social Security income, supplemental security income, and veteran’s benefits, an individual or agency payee can be assigned to manage these funds on their behalf.

Supported Decision Making

To avoid guardianship, individuals can create a network of trusted advisors who assist with decision-making, providing support and guidance.

Home Healthcare Agencies

People experiencing a decline in mental capacity can enlist healthcare agencies to help with daily activities in the home like getting dressed, taking baths, preparing meals, cleaning, and more.

Consult Our Charlotte Family Law Lawyers Today!

When dealing with an incapacitated loved one, you don’t have to deal with all the complex legal processes and laws alone. This is why Waple & Houk exists. We are an experienced team of family law attorneys and have all the legal knowledge and experience to help you. So, before petitioning for guardianship, contact us for a confidential case review.