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.
What Is Guardianship?
Guardianship is a legal relationship where a person or agency (the guardian) is appointed by the court to make decisions on behalf of another person. Unusually, the latter does not have adequate capacity to make decisions on matters involving the management of their personal affairs, property, or both.
To create a guardianship, the person who wants to be a guardian must commence a court process. If the court finds the person the petitioner seeks to become their guardian incompetent, the petitioner becomes their surrogate decision-maker and advocate. However, the guardian must allow the ward to participate in decisions concerning them as much as possible.
The law expects the guardian to protect the opportunity for the ward to exercise rights that are within their comprehension. It means the person can still make decisions on things they understand and can grasp. This way, they can make the same errors as a competent person. So, while the guardian looks after a ward’s welfare, they are not to impose their choices on them.
Is Guardianship the Same as a Power of Attorney?
A guardianship is not the same as a power of attorney. Under a power of attorney, a person decides who will assist them with important decisions and manage their affairs. Here, the authority is delegated in a written document, and it does not require a court proceeding.
In a guardianship, on the other hand, the court solely reserves the right to choose the person who will be managing the ward’s affairs and property. In some cases, the court appoints a non-family member as the guardian. Due to the strict nature of guardianship, our Charlotte family law lawyers advise clients to weigh all the possible options before filing a petition. Only consider guardianship when there is no other viable alternative.
Are There Other Alternatives to Guardianship?
In North Carolina, the law favors less restrictive alternatives to guardianship, if possible. Some of the other options you can consider are the following:
Durable Power of Attorney and Health Care Power of Attorney
Any adult who still has the mental capacity to understand what they are doing can execute these documents. The durable power of attorney and health power of attorney gives the assignee the authority to manage the assignor’s financial, medical, and other matters. Our Charlotte elder law attorneys can help you prepare this document.
Advance Directives for Natural Death “Living Will” and Advance Directive for Mental Health Treatment
Advance directives are legal documents that provide instruction on what medical treatment the person giving it would want or not want. You can get advance directive forms from the North Carolina Secretary of State, and you can file them with the office afterward.
When people entitled to receive certain types of a specific state or federal benefit can no longer manage these benefits, they may get assigned an individual or agency payee to receive and manage the funds for them. An example of these benefits is Social Security income, supplemental security income, and veteran’s benefits.
Supported Decision Making
Individuals who want to avoid guardianship can create a network of trusted individuals. These persons would support them by helping with decision-making.
Home Health Care Agencies
Lastly, people who notice they are losing their mental capacity can get home health care agencies to assist them. These agencies handle tasks like dressing, bathing, cooking, cleaning, and other daily life activities.
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 free case review.