Incompetency and Guardianship
When a person loses mental or physical capacity, they might need a guardian appointed to oversee their well-being. During this process, the Court will evaluate and review a person’s capabilities to determine whether to appoint a guardian to take responsible for many important tasks for the individual. Regardless of the outcome, it is often a very difficult time for both the person being evaluated and their family members.
Having a guardian appointed is a two-step process. First, the person must be deemed incompetent by the Court. Then, if the person is deemed incompetent, the second step of the process is having a guardian appointed.
There are three types of guardians: Guardian of the Person, Guardian of the Estate, and General Guardian. The Guardian of the Person makes healthcare and placement decisions. The Guardian of the Estate makes financial decisions. The General Guardian acts as both the Guardian of the Person and Guardian of the Estate. In most cases, the person seeking to become the guardian of their loved one is seeking to become the General Guardian.
Commonly Asked Questions About Incompetency and Guardianship
Q. How does the Court determine if someone is incompetent?
A. The Court looks at many factors to determine if a person is incompetent. The Court focuses on whether a person can perform routine daily activities such as preparing meals, taking medication as prescribed, maintaining proper hygiene, and performing household chores. The Court also considers the person’s ability to make rational financial decisions by reviewing their ability to manage their investments, manage their bank accounts, and pay their bills. Lastly, the Court considers whether the person can take the steps necessary to protect themselves from harm and exploitation.
The Court will follow THESE laws when determining incapacity.
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 manages the persons assets, pays their bills, and makes the financial decisions.
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. 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.
Nick Fernez leads our Elder Law practice. Please click here to see his biography.