There are three types of guardianship in North Carolina : Guardian of the Person, Guardian of the Estate, and General Guardianship (this combines Guardian of the Person and Guardian of the Estate) .
Other states, such as California, may call this conservatorship and other states may have a combination of Guardianship and Conservatorship.
Guardianship is a legal procedure used to protect people who are unable to manage their financial affairs or make decisions regarding their medical needs. A legal guardian is appointed by the court and given legal authority to make personal and financial decisions on behalf of the elderly, an incapacitated individual, or a minor.
The guardianship process for adults and minors begins when you file a court petition and request to be appointed as Guardian for the individual being subject to Guardianship. If the court grants your request to be appointed as Guardian, you will be given the authority to make decisions for the individual being subject to the Guardianship Before approving the guardianship, the Clerk of Court must determine if the individual being subject to the guardianship can make personal, financial, and healthcare decisions independently.
When is Guardianship Appropriate?
There are various situations where guardianship would be considered appropriate. Check out the following scenarios below before you consider launching guardianship proceedings regarding a loved one:
- A close family member suffers from a severe mental illness
- Your disabled child turns 18 years
- A loved one suffers a significant injury or terminal disease and has not prepared powers of attorney
- An elderly parent is no longer able to care for themselves
- A loved one is in a comma and has not prepared powers of attorney
The above list is not all inclusive, and there are other factors that will need to be considered before considering to file a petition with the Court to be appointed as another’s guardian.
Appointment of a Guardian
In most cases, the Clerk of Court will appoint a close family member such as an adult child, spouse, or domestic partner to be someone’s guardian. If the person being subject to the Guardianship has no close family members, then the Clerk will sometimes look to non-immediate family members such as nieces, nephews, aunts, and uncles to appoint as guardian. If the person being subject to guardianship has no other family members to appoint as guardian, or family members refuse to be appointed as guardian, then the Clerk will look to friends of the person being subject to the Guardianship, to appoint as guardian . If no one is available or suitable for the position, the Clerk will appoint a neutral party, and this can be a trained attorney, or other professional fiduciary, who manages these issues as needed.
The appointed legal guardian plays a vital role in the individual’s life. The Guardian can be in charge of handling the following items for the individual being subject to the guardianship:
- Consenting to and managing medical treatment
- Deciding where the incapacitated person should live
- Managing finances and property
- Consenting to the release of personal information
- Maximizing independence in a reasonably restrictive manner
- Applying for government benefits
- Filing periodic reports with the court regarding their guardianship status
This list is not all inclusive, and the Clerk can restrict the powers of the guardian as the Clerk deems appropriate.
A guardianship arrangement can be terminated under certain circumstances, including the following:
- The guardian resigns
- The incapacitated individual passes away
- It is determined the guardian is unfit or irresponsible for the role
- The incompetent individual is declared competent again by the Clerk
- A child turns 18 and is no longer considered a minor
Contact Wilmington Guardianship Attorneys
If you believe your elderly parent or another family member can’t care for themselves or need someone to take on the role of guardian for a minor, you may file a court petition to start the guardianship process. However, it’s important to note that this legal process can be lengthy and complex, especially as you follow strict North Carolina court procedures.
Hiring a skilled Wilmington Guardianship Attorney who is well-versed with these court procedures and can make the guardian process easier for the person petitioning for Guardianship, and even on the person being subject to Guardianship. The attorneys at Rountree Losee have experienced knowledge in guiding you through the guardianship process for minors and adults.