There are a few different ways in which someone can inherit power over personal property and assets on a loved one’s behalf. One of the most important is the guardianship process, which allows a family member or other person to ensure proper care for someone who can no longer care for themselves.
However, this process is not appropriate under all circumstances and can be complicated to invoke, even when it is warranted. Working with a Cary adult guardianship lawyer can ensure the process goes smoothly. Guidance from a seasoned guardianship attorney could be key to establishing guardianship and, if the need arises, enforcing it in a court of law.
The North Carolina Judicial Branch defines a guardianship as a legal arrangement allowing a person to make decisions on behalf of another who is unable to act in their own best interests with regard to their assets, property, and personal affairs. Guardianships are commonly associated with legal custody of a minor child, but they can also be used when an adult is judged to be incompetent by a court.
As per the definition of an incompetent adult codified in North Carolina General Statutes §35A-1101, various conditions may render a person incapable of acting in their own best interests. These may include life-long conditions like autism, epilepsy, and cerebral palsy, as well as conditions acquired later in life, such as dementia or Alzheimer’s.
In certain cases, guardianship may also be sought on behalf of an accident victim who suffers significant loss of cognitive function due to traumatic brain damage, or for someone whose incompetence stems from drug or alcohol abuse. A qualified legal consultant could advise an individual seeking guardianship about whether they have valid grounds to have a loved one declared incompetent.
The first step to acquiring guardianship over another person is to file a written petition with the local clerk of superior court to have that person, also known as the respondent, declared incompetent. The clerk of court would then schedule a hearing for this matter, during which the petitioner must present evidence to prove the respondent’s incompetence. An independent examination to determine the respondent’s physical, psychological, and social wellbeing may be ordered by the clerk or it may be requested by the petitioner or respondent.
While a guardianship petitioner in Cary is not required to retain the services of a representative, a respondent could either retain their own legal counsel or have guardian ad litem appointed to them by the court. The hearing will conclude with either the clerk or a jury determining whether to grant or dismiss the petition.
If the petition for incompetence is granted, the court would then make a determination during the same hearing as to who the appointed guardian of the respondent should be, as well as whether they should be a general guardian or only have power over the respondent’s estate. Once someone receives guardianship over another person, their duty does not end until their ward regains competence or dies, the clerk of court removes them from that role, or they resign the role voluntarily.
Seeking guardianship over another person is a consequential step to take, so it is important to ensure compliance with state law if it ultimately becomes necessary to pursue this action. If you believe this measure is in a family member or loved one’s best interests, you should strongly consider retaining legal counsel to help you with your petition.
A compassionate Cary guardianship lawyer could also work with you to acquire evidence of incompetence, advocate on your behalf in court, and ensure both your best interests and those of your prospective ward are respected. To schedule an initial consultation and discuss your case, call today.