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CATEGORIES:  Elder Law, Special Needs Law, Guardianship, Guardian, Custodian, Petition, Winston Salem, North Carolina, NC.

To fully protect an adult who is physically or mentally incapable of taking care of himself, it may be necessary to become his or her adult guardian.  Guardianship is employed most frequently to care for special needs adults, adults with traumatic brain injury or other injury, mentally ill adults, or to care for seniors with dementia or other degenerative neurological conditions.

The responsibilities and authority legally provided to an adult guardian in North Carolina resemble the responsibilities and authority provided to a parent of a minor child.   

Types of Guardianship

Anyone may petition the Clerk of Superior Court (who has the judicial authority to decide guardianship cases) in the disabled person’s county of residence to become his guardian.  The petitioner may apply to become 1) guardian of the person (responsible for personal and medical decisions); 2) guardian of the estate (responsible for financial and legal decisions); or 3) general guardian (responsible for all personal, medical, financial, and legal decisions) for the disabled adult.

The disabled adult may be legally referred to as the “ward” after guardianship has been established.

Power of Attorney Documents

If the disabled adult has previously signed (as “Principal”) Health Care Power of Attorney and Financial (Durable) Power of Attorney (POA) Documents, and the agents (or attorneys-in-fact) selected in those documents can still reliably make health care, financial, and legal decisions for the disabled adult, guardianship may not be needed.

POA documents are normally easy and inexpensive to obtain, and typically are provided as part of a document package by attorneys who practice elder law or estate planning.

Because these POA documents do not normally replace or overrule the wishes of the disabled adult, and because guardianship status provides a more complete, authoritative, and “parental” means of caring for a disabled adult, adult guardianship may still be desirable in some cases.

Parents of special needs children may want to continue their full parental role after their child becomes 18.  In dementia cases where the disabled adult becomes uncooperative or irrational, the additional control provided by guardianship (where the disabled adult’s legal decision making authority has been removed) may be desirable or needed.

If the disabled adult is already legally incompetent, thus cannot sign POA documents, guardianship may be required.

POA documents normally either 1) require one or more physicians to determine incompetency, in order to become active; or 2) become active immediately upon being signed by the principal and properly executed.

Where an agent or attorney-in-fact has been trying to make decisions for an uncooperative adult prior to any physician’s finding of incompetency, it may be helpful to go ahead and obtain a letter of incompetency from one of the disabled adult’s physicians.  The agent can then use the physician’s incompetency letter (together with the POA documents) to better establish his authority to make the disabled adult’s personal, medical, financial, and legal decisions.

The Process

The guardianship petitioner, who is frequently represented by an attorney, fills out the required “Petition for Adjudication of Incompetence and Application for Appointment of Guardian“ (AOC-SP-200) and Guardianship Capacity Questionnaire (AOC-SP-208) forms, which ask questions about the mental and physical competency of the disabled person.  These documents are filed with the Clerk.  The Clerk sets a hearing date, and a Sheriff’s officer is sent to serve the potential ward with notice of the hearing.

Although the potential ward holds the right to a jury proceeding, most guardianship proceedings are adjudicated by the Clerk.  The potential ward has the right to select his own attorney to represent him.  If he does not have his own attorney, the Clerk selects a guardian ad litem (GAL), normally an attorney, to protect the legal rights of the potential ward, and to represent the potential ward.

The Hearing

In the initial guardianship hearing, the Clerk (or a hearing officer in a larger county) must first rule on the competency (or incompetency) of the potential ward.  To help the Clerk find the potential ward mentally incompetent, the petitioner should provide solid medical evidence, such as a physician’s letter stating that the potential ward is currently mentally incompetent, to the Clerk.

The GAL normally conducts his own review of the potential ward’s recent medical records and history, and reviews any other information available to him about the potential ward’s current medical condition.  The attorneys, petitioner, potential ward, GAL, interested close family members, other witnesses, and other interested professionals (such as medical professionals or involved social workers), may testify during the hearing.

If the Clerk is satisfied with the evidence supporting mental incompetency, he or she rules the potential ward “mentally incompetent” during the initial hearing.  If the Clerk is not yet satisfied with the incompetency evidence, the Clerk may ask any party at the hearing for specific additional medical tests, reviews, opinions, or other additional evidence.  Another hearing may be scheduled to review and evaluate this additional information.

Once the potential ward has been found mentally incompetent, the Clerk then evaluates the credentials of the petitioner who has applied to serve as guardian.  Because nefarious petitioners can apply to serve as guardian seeking to convert the potential ward’s assets to their own use, and because elder financial abuse remains common, the Clerk normally asks questions about the petitioner’s intentions and capabilities in serving as the potential ward’s guardian, in a process that seeks to screen out abuse.

Close family members with a demonstrated history of caregiving to the potential ward more easily pass the Clerk’s review.  If the petitioner has applied as a guardian of the estate or a general guardian, and will be managing the potential ward’s assets, the Clerk frequently requires the petitioner to post a bond from a bonding company before issuing a final guardianship order.

Special Needs Guardianship

Parents of special needs children frequently do not realize that in order to legally continue their parental decision making role past their child’s age of 18, they must petition for adult guardianship of their child (which they can establish in North Carolina starting at their child’s age of 17 1/2.)

Because many parents may wish their special needs child to live independently after he or she reaches age 18, whether or not to establish adult guardianship of a special needs child should be a carefully considered family decision.  Such adult guardianship effectively removes the adult legal rights of the special needs child in favor of the guardian’s decision making.

Unfortunately, however, the special needs adult who is not properly protected by a guardian, or is not properly supervised, may be sought out and targeted by financial abusers or other predators.  Such a special needs adult can be vulnerable living alone (potentially with power to sign documents and make contractual agreements) without the protection of an accessible guardian.

Establishing adult guardianship of a special needs child may make the parent’s estate planning more certain.  A parent may choose his or her choice of adult guardian for their special needs child (to serve after the parent has died) in the parent’s will document, a recommendation which is normally followed by the Clerk.

If the parent has already established adult guardianship of his or her special needs child during the parent’s lifetime, the parent has not left the uncertain determination of his or her special needs child’s guardianship up to others following the parent’s death.

If the parent has previously established adult guardianship, the parent’s choice of a successor or continuation guardian in the parent’s will (without the Clerk also needing to find the special needs child incompetent first) provides an easier and less complicated decision for the Clerk, and may more predictably assure the parent that his or her special needs child will continue to be protected.