We often spend a significant portion of our lives caring for our children, spouses, parents, grandparents, and other dependent or ailing family members and close friends. We become caregivers out of a sense of duty and love, without putting much more thought into it beyond “It’s the right thing to do.”
In some situations, being able to take care of someone properly requires you to gain the legal ability to make decisions for them. The child may already live with you, but you might not have the power to move him or her to a new school or out of state. You may care for an elderly parent, but not be able to make necessary medical decisions.
If you need to take care of a child that isn’t biologically your own or an adult with a disability, it isn’t enough to say you’re willing to provide for them and make decisions regarding their health and education. You might be able and ready, you just need permission first.
Opposed to adoption, legal guardianship over a minor or disabled adult is when the court grants someone the ability to act on another person’s behalf because that person is unable to care for him or herself. The guardian will have the legal right to decide on his or her ward’s housing situation, education, health care, and other personal necessities. In many situations, the guardian also takes responsibility for his or her ward’s finances.
North Carolina guardianship lawyer Jonathan Breeden has served members of the Johnston and Harnett communities and surrounding areas for more than 20 years. He understands the need for guardianship often arises in stressful times when you’re trying to do your best for another person, which is why he fights so fiercely for your rights.
To become a legal guardian, you must show the court that the minor or adult is unable to take care of him or herself due to mental illness, disease, or injury. You will need to petition the court to determine someone is incompetent and place you as his or her legal guardian.
To be labeled incompetent, the person must not have the mental capacity to make decisions regarding his or her care, and a physician generally provides evidence regarding this fact.
There are three types of guardianships in North Carolina:
The person you’re attempting to gain guardianship over has the right to a lawyer and a guardian ad litem. A guardian ad litem represents the minor or allegedly disabled adult and fights for his or her best interests in court. The minor or adult, his or her lawyer, or a guardian ad litem can ask that the proceeding be a trial by jury, otherwise, the decision will be made by a judge.
Once a guardian is appointed, the law dictates certain duties that a person must uphold, particularly when someone is the guardian of a minor or incompetent adult’s estate.
Additionally, a guardianship may not be forever. In some instances, a ward can have his or her competency legally restored.
Generally, a guardian oversees the welfare and safety of the individual under guardianship. This includes attending to their financial needs, appropriating his or her assets responsibly, and functioning with a “fiduciary duty” in the best interests of the person under their care.
Depending on the situation, legal guardians can decide how to manage the individual’s finances, where they live, their medical care, and other important aspects of life. As a result of this obligation, a guardian must also keep careful records to verify they are acting in the individual’s best interest. This means regularly submitting bank records, medical records, and account statements to the court to ensure they are receiving proper care and not being taken advantage of.
Guardianship proceedings often run smoothly, such as in cases where parents must gain guardianship over their disabled child when he or she turns 18 years old. It can be clear that general guardianship is the best way to continue the care the parents already provide for their child.
However, in some situations, guardianship can be contested. People often seek legal guardianship over an elderly parent or grandparent who no longer has the mental capacity to make decisions for their care. The allegedly incompetent adult may disagree with the need for a guardian or loved ones may argue about who should be the guardian.
You likely have many questions regarding the specifics of guardianship, such as: