If your elderly loved one has become mentally incapacitated, you may be considering whether it is time to make medical and financial decisions on their behalf. However, pursuing legal guardianship is a big decision that is only appropriate under specific practical and legal circumstances.
If your family member truly needs you to serve as their legal guardian, a qualified estate planning lawyer could explain what becoming a guardian in Cary entails and provide guidance throughout the process. A knowledgeable legal advisor could also walk you through the necessary steps to take before a court will approve your guardianship petition.
In order for a Cary court to declare that guardianship is appropriate, the prospective ward must meet the state law’s definition of “incapacity.” This has three components: cognitive or communicative incapacity, functional incapacity, and status incapacity.
More specifically, an elderly individual must be cognitively unable to make important decisions about themselves or their property and functionally unable to manage their personal and financial affairs on a day-to-day basis. They must also suffer from some physical or mental ailment that is directly causing their incapacitated status. Evidence of this could take many forms, including:
It is important to note that the legal definition of incapacity is that it must be more than temporary or mild. In other words, an elderly individual occasionally being forgetful or eccentric would not serve as sufficient evidence by itself that guardianship is justified. Anyone who wishes to become a guardian in Cary must demonstrate that an elder’s condition is permanently debilitating and will prevent the proposed ward from acting in their own best interests.
The first step in a guardianship proceeding is the prospective guardian submitting a petition to the Clerk of Court. This document requests that the court declare the incompetency of their prospective ward, known as the “respondent.” Prior to a hearing, the Clerk will appoint an attorney as “guardian ad litem” to represent the proposed ward’s best interests.
If a guardianship hearing ends with a declaration of incompetence, the court then has the authority to appoint one or more parties as the respondent’s legal guardian(s). This action grants them the right and obligation to ensure their ward’s physical wellbeing, maintain the ward’s estate, and manage the ward’s financial and occupational interests and debts.
Importantly, the court’s ruling in this type of case will be based on the respondent’s best interests rather than the specific petition that started the hearing. Although rare, it is possible for a court to assign guardianship to someone other than the person petitioning for that role.
In most situations, a successful guardianship petition will end with the petitioner being granted binding legal authority over the ward’s affairs. This arrangement will last until the ward passes away or a subsequent court order declares them to no longer be incompetent. The various duties and obligations of becoming a guardian in Cary are listed in North Carolina General Statutes §35A-1251, which a well-informed lawyer can go over in greater detail.
Establishing guardianship is a big step, so it is important to first explore all options and alternatives with a skilled legal team. If this arrangement is in your loved one’s best interests, an experienced lawyer can explain everything you need to know about becoming a guardian in Cary. Get in touch with our firm today to set up an initial meeting.