What is Guardianship?

A guardian is someone who is appointed by the Clerk of Superior Court to act on behalf of an incompetent adult.  Incompetency is a legal term indicating that an individual cannot manage his or her own affairs, meaning making decisions regarding money and property, or person, meaning making decisions concerning health care matters and residence.  Generally, there must be medical or psychological evidence to assist the Court in making a determination regarding an individual’s competency or capacity to make decisions.

Legal Guardianship Rights

Several rights of an individual may be affected if a guardianship is established.  The individual may lose the right to determine where he or she may live or the right to consent to medical treatment.   North Carolina Courts have held that other specific rights are retained, but those rights may be more difficult for the individual to exercise.  These rights include the right to marry, vote, create a will, drive, or contract.

Alternatives to Legal Guardianship

The guardianship process is very trying emotionally.  It is difficult to discuss with a loved one the need to have another person make decisions on their behalf and in their best interest.  Because a guardianship takes away a person’s right to manage his or her own affairs or person, alternatives should be considered before seeking guardianship.  These alternatives may include establishing the following:

  • A representative payee for the person’s income;
  • A Trust to hold and manage the person’s assets;
  • Durable Powers of Attorney for financial matters;
  • Durable Powers of Attorney for Health Care; and
  • Joint checking accounts.
Legal Guardianship Attorneys

The assistance of a skilled guardianship attorney can help the family make decisions regarding the availability and effectiveness of the above alternatives to guardianship.  The skilled attorney can also help the family make decisions about the need for and practical aspects of a guardianship law.  Discussions about support, the guardianship legal process, and the need for caregivers with an attorney may help a family make good decisions for the benefit of their loved one.