How Guardianships of the Elderly Work in North Carolina

When an elderly loved one begins to experience difficulty caring for themselves, making legal and financial decisions independently, or performing daily life tasks, you may find yourself asking difficult questions about how to best protect your loved one while honoring their dignity and respecting their need for independence.

Guardianship of the elderly transfers legal decision-making from the elderly person to a trusted individual or loved one. However, guardianship of the elderly represents an important shift in independence and legal rights, and it is not always the right answer. Understanding what legal guardianship entails, when it may be necessary, and exploring less restrictive alternatives to guardianship are important steps in protecting the lives of the people we love.

What Is Adult Guardianship?

Adult guardianship is a legal relationship that can be created when an elderly individual can no longer make important medical, legal, or financial decisions on their own. In an adult guardianship, the court grants another individual the legal authority to make decisions on behalf of the incapacitated person, known as the “ward.”

When Is Elderly Guardianship Necessary?

There may come a time when an elderly parent or loved one can no longer take care of themselves or make important life decisions on their own. In these cases, it is often in the best interest of the elderly individual to have the court appoint a guardian to handle these decisions for them.

Elderly guardianship may be necessary for older adults who have dementia, intellectual disabilities, or a mental disability that inhibits their ability to make safe or appropriate decisions on their own. A family member, healthcare provider, or another concerned party might observe changes in the elderly person’s daily habits, personal care, or financial management, prompting a discussion about elderly guardianship.

Types of Guardianship in North Carolina

North Carolina recognizes four different types of adult guardianship.

• A Guardian of the Person is responsible for personal matters such as medical care and treatment, and placement of the ward.
• A Guardian of the Estate is responsible for managing the ward’s financial affairs and other property.
• A General Guardian is responsible for both personal and financial matters.
• A Guardian Ad Litem is appointed by the court to represent the ward in legal proceedings, advocating for what is in the ward’s best interests.

How Does Guardianship of the Elderly Work?

If an elderly person loses their ability to think clearly or make informed decisions about their life but does not have a power of attorney or other alternative to guardianship in place, legal proceedings may be required to determine whether the elderly person is, in fact, legally incompetent. If so, the court will appoint someone to serve as the guardian of the ward.

To obtain legal guardianship of an elderly person in North Carolina, someone must initiate guardianship proceedings with the Clerk of Superior Court in the county where the elderly person lives. The person initiating guardianship proceedings must:

1. File a petition for guardianship with the Clerk of Superior Court in the county where the elderly person lives. The petition must include a sworn statement that the information contained in the petition is true.
2. The Clerk of Court will schedule a hearing date and notify the elderly person and their attorney or representative, if they have one.
3. Before the hearing, the court may order a medical, psychological, or other evaluation of the proposed ward.
4. At the hearing, the judge will consider the results of the requested evaluations and other evidence about whether the proposed ward is legally incompetent. The individual who filed the petition must present sufficient evidence to prove the proposed ward is incompetent.
5. If the proposed ward is found to be legally incompetent, the court will issue an order appointing a legal guardian and explaining their legal duties and obligations.

Once appointed, a legal guardian is not required to financially support the ward or contribute their own resources to support the ward. The guardian is not liable for the ward’s debts. They may seek reimbursement for reasonable expenses incurred in carrying out their duties as guardian, and may receive a commission set by the judge for serving as the ward’s guardian.

A guardianship will continue until:

• The guardian resigns
• The ward is restored to legal competence
• The judge removes the guardian
• The ward dies

What Are Alternatives to Elderly Guardianship?

Because legal guardianship limits the ward’s freedom and decision-making power, guardianship should be considered only as a last resort, and courts are required to explore less-restrictive options.

Power of Attorney

Most estate plans include a power of attorney, which can avoid the need to appoint a guardian for the elderly person. An estate plan should include a Durable Power of Attorney and a Healthcare Power of Attorney, which are made while the elderly adult is still legally competent and appoint another individual to make legal, financial, and medical decisions on their behalf.

Supported Decision-Making

North Carolina recently recognized Supported Decision-Making as a less restrictive alternative to guardianship of the elderly. In Supported Decision-Making, the elderly person (known as the “supported person”) chooses trusted supporters in their community and home, such as friends, family members, and professionals, to help them understand and communicate their decisions rather than making decisions for them.

Shared Accounts

If you are primarily concerned about managing the financial decisions of an elderly loved one, shared bank accounts are another option. By sharing ownership of the account, the elderly person grants another person oversight of the shared account while retaining substantial control over it. A shared bank account will allow you to monitor your elderly loved one’s financial transactions and place limits on withdrawals, while avoiding the expense and need for oversight required in a guardianship.

Trust

When a trust is formed, the elderly person can name a trustee of their choice and identify property to be held and managed on their behalf. Different types of trusts are available and can be tailored to the specific needs of the situation and used as a less restrictive alternative to guardianship.

Answers to Your Questions About Guardianship of the Elderly

Seeking guardianship of an elderly loved one can be a stressful and challenging process for the ward and the guardian. Guardianship is expensive, and alternatives to guardianship can be better. We encourage clients to avoid guardianship of the elderly through a thoughtfully prepared estate plan. But when guardianship of the elderly is the best option, Carolina Tax, Trusts & Estates, a Department of Van Camp, Meacham & Newman, PLLC can initiate guardianship proceedings on your behalf and, occasionally and upon request, serve as guardian. Contact us today to schedule a confidential consultation to discuss your situation and how we can assist you.