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Guardianship: how to cope when a loved one loses capacity

When a person loses mental capacity, they may need to be appointed a guardian. During this process, the Court will evaluate and decides a person’s capabilities to determine whether to appoint a guardian to handle certain tasks for the individual. Regardless of the outcome, it is often a very difficult time for both the person being evaluated and family members.

A knowledgeable and competent attorney can help alleviate much of the complexity and anxiety of the guardianship process. The attorneys at Dugan & Leger, PLLC can confidently lead you through the appointment procedures, providing both assurance and comfort to the entire family.

Commonly Asked Questions About Guardianship

Q. A relative of mine lives by himself. He is having difficulty to do things like take his medicine. Does he need someone to make decisions for him? What are some options?

A. If your relative has not executed a Durable Power of Attorney, you would want to encourage him to do so. A properly created Durable Power of Attorney requires that the person is competent at the time of creation. Thus, if your relative is not able to understand what the document is for, then he is probably already incompetent.
In this case, you may want to have him declared incompetent by a court, and have you or someone trustworthy appointed as a guardian to make decisions for him. This is known as the Guardianship process.

Q. What does a Guardian do?

A. A “guardian” is appointed by the Clerk of Superior Court to make decisions for a person who is determined incompetent (the “ward”). There are three types of guardians in North Carolina: 1) Guardian of the Person 2) Guardian of the Estate, and 3) General Guardian.
Guardian of the Person is a guardian that decides issues about personal care, like housing and medication. The guardian cannot decide how to handle the ward’s finances.
Guardian of the Estate is a guardian who handles the ward’s finances, but cannot make decisions regarding personal care.
General Guardian has the power to decide issues relating to both finances and personal care. This is a combination of Guardian of the Person and Guardian of the Estate.

Q. How does the Court decide if a person is incompetent?

A. The person seeking the guardianship must petition the court to decide that the person is incompetent. There must be evidence presented to the Court that the ward cannot make decisions for him/herself anymore. The Clerk of Court will follow THESE laws when determining incapacity.

Q. What is a Standby Guardian?

A. A Standby Guardian is someone the parent of a minor child designates to become the guardian of the minor child for up to 90 days. This guardianship can become effective either immediately, or upon the incapacity, debilitation, or death of the parent.

Designating a Standby Guardian of your minor child can be a key element of an estate plan because it increases the chance that your minor child will be cared for immediately should the parent become unavailable unexpectedly. Designating the Standby Guardian today can also reduce the chances of a feud between relatives over the care of your minor child.

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