All grown-ups are expected and assumed to have the capacity to make their own decisions unless a court establishes otherwise. Suppose a person’s physical and mental faculties become compromised to a point where they cannot make sound decisions about their well-being and finances. In that case, his or her loved ones may consider getting a guardian or conservator to make decisions on behalf of the incapacitated individual.
This is where our experienced Charlotte elder law attorneys come in. At Waple & Houk PLLC, we help families and individuals seeking elder law assistance. We have a good understanding of the rules and can help you navigate the processes involved with ease. Our legal team can also help plan ahead to protect your family and loved one in case of incapacitation. We serve people in Charlotte and all over North Carolina.
Table of Contents
What Is Incapacity?
When a person cannot effectively exercise his or her own rights on their own behalf, they are said to be incapacitated. Generally, an individual who displays a lack of capacity to make responsible or sound decisions is adjudged to require guardianship or conservatorship.
What Is a Guardian?
A guardian is an advocate and surrogate decision-maker appointed by the court to help incapacitated adults make and communicate important choices and decisions regarding their personal and financial affairs. The law requires guardians to make decisions that best suit their ward (the person a guardian protects) since they have a fiduciary duty.
What Is a Conservator?
A conservator is a court appointee tasked with overseeing the financial affairs of an incapacitated adult. A conservator deals primarily with all financial matters of the individual deemed incapable of doing so for themselves due to disability or advanced age.
How Is a Guardian Different From a Conservator?
A guardian is appointed to ensure that a legally incapacitated individual’s care, well-being, and personal needs are catered for at all times. However, a conservator is appointed to handle the properties and assets of a legally protected incapacitated person. While both guardianships and conservatorships are designed to deal with the affairs of an incapacitated adult, the roles have entirely different functions.
Who Needs a Guardian/Conservator?
The primary test for establishing the need for conservatorship or guardianship focuses on the individual’s ability to make decisions and communicate the same. Most guardianship and conservatorship check on the individual’s ability to make sound decisions regarding medical care, care for dependents, vocational and educational services, living arrangements, ancillary professional services, and finances.
Situations that require guardianship or conservatorship may include:
- Mental incapacity like Alzheimer’s disease
- Schizophrenia and other psychiatric issues
- Disability or Severe physical incapacity
How Does the Guardian/Conservator Action Work?
When someone is appointed as a guardian or conservator, they have a legal right to exercise some or all of the ward’s legal rights. First, the court must determine the individual’s incapacity. Here are the steps in this process:
Petition Questioning Capacity
A petitioner files a petition questioning the capacity of the individual to make sound decisions. The petitioner can be any interested person, such as professional advisors, the individual’s family members, or friends.
Committee of Medical Experts Examine the Person
The court then appoints a delegation of doctors, nurses, and sometimes social workers to examine the incapacitated person. If the court doesn’t assemble this delegation, it might order the petitioner’s attorney to assemble this committee.
The court will also appoint a lawyer to represent the ward or order the petitioner’s attorney to select one.
Every member of the assembled delegation will meet and examine the allegedly incapacitated individual in person.
Committee Files Report With Court
After meeting with and examining the purportedly incapacitated person, members of the committee will prepare a report about the person’s physical and mental faculties and file it with the court. Every member of this committee must contribute their observations.
Attorney or Evaluator Meet Person and Files Report
The incapacitated individual’s attorney or another court appointee will be required to meet in person with the incapacitated individual to inform them about the proceedings and read them the petition.
The incapacitated person’s lawyer or the court-appointed evaluator will write a report about their meeting with the incapacitated individual and file it in court. In the report, the attorney or evaluator should state whether they believe the incapacitated person understood the contents of the petition read to them earlier and the purpose of the meeting.
Judge Assesses Findings
The judge will then assess the petition, the delegation’s findings, and the lawyer’s report. The judge will take the lawyer’s observations and the medical committee’s expertise into consideration.
The judge will listen to arguments made against or for the individual’s need for a guardian or conservator in a hearing whose attendance must typically include the incapacitated individual’s court-appointed attorney and all interested persons and their lawyers.
The judge may need to question some or all of the people in attendance and may require them to help him make the right decision. The incapacitated person can skip the hearing if their condition bars them.
Verdict on Capacity
The judge will deliver the final verdict on whether the person in question is partially or 100% competent or completely incapacitated. After combining the written findings of the committee and testimonies of all interested parties, the judge will decide on the person’s overall faculties.
What Are the Responsibilities of the Guardian/Conservator?
The court may order the guardian or conservator to exercise the ward’s rights if it finds that the ward cannot exercise these rights on his or her own behalf. The court may transfer the following powers in part or in full to the guardian:
- Oversee that the guardianship or conservatorship is tailored to meet the actual needs that suit the individual under guardianship or conservatorship.
- Make decisions that warrant the ward’s health and well-being based on the choice the individual under guardianship would make if they were not incapacitated.
- Search for information about the ward’s wishes, value system, and needs from the individual, their family, friends, or a Living Will and other legal documents.
- Involve the individual under conservatorship or guardianship in all decisions as much as possible.
- Allow the person under guardianship or conservatorship the chance to exercise the rights within their understanding and judgment, allowing them a similar likelihood for error as an individual who is not under conservatorship or guardianship.
- Help the person under conservatorship or guardianship develop the required skills to take over responsibility for making their own decisions.
- Ensure that the conservatorship or guardianship is reviewed occasionally and consider alternatives to conservatorship and guardianship like limited guardianship or restoration to competency.
How Long Does a Guardianship/Conservatorship Last?
Once the court has ordered for a guardianship or conservatorship, the order will last as long as:
- The person under guardianship or conservatorship dies.
- The court discovers that the ward is no longer hindered
- The individual appointed as the conservator or guardian resigns or passes away.
- The clerk or assistant clerk of the superior court finds that it is in the incapacitated elderly person’s best interest to remove the guardian or conservator.
How Can an Elder Law Attorney Help Me?
Elder law attorneys represent the rights of the elderly and their families. The elder law/guardianship lawyers at Waple & Houk PPLC handle legal matters related to older people like long-term care planning, guardianship, health care, retirement, Social Security, and other crucial matters. Apart from financial and estate planning matters, we also take care of daily issues that affect the care of senior citizens, like life planning and assisted living.
Below is a look at a few ways our Charlotte elder law attorneys can help:
- Discuss the importance and benefits of estate planning and wills, including planning for an incapacitated adult, probate proceedings, and other matters.
- Create a durable power of attorney.
- Assist with planning and health care such as Medicare, patient rights, long-term care options, and health care power of attorney.
- Offer financial representation through financial planning (including durable financial power of attorney), housing opportunities and planning, gift tax matters, income, and estate matters.
- Assist with the selection and appointment of a legal guardian/conservator.
- Help find facilities that provide long-term care and manage the cost of assisted living.
- Explain the rights of a nursing home resident and help file nursing home claims.
- Draft vital documents such as a living will, long-term planning documents, or other advance directives, including a durable power of attorney.
Get Help From an Experienced Charlotte Elder Law Attorney
When dealing with an incapacitated elderly family member, the last thing you need to worry about is learning the complex laws associated with elder law. An experienced elder law attorney to help you understand the process and secure the right help to ensure your loved one gets the best care.
The law offices of Waple & Houk PLLC helps clients in Charlotte and throughout North Carolina with all matters concerning guardianship and conservatorship. We provide expert assistance and elder law advice to help families with incapacitated elderly individuals plan for their general well-being. To learn more about the specific services that Waple & Houk PLLC offer, please give us a call at (704) 480-3899.