When a loved one has a disability, it’s natural to want to do everything in your power to protect and support them. As a parent, sibling, or close friend, you may find yourself in a position where you need to consider legal guardianship to ensure your loved one’s well-being and quality of life.
Pursuing legal guardianship for an adult with disabilities can be an emotional and challenging process. It’s a significant decision that involves taking on a great deal of responsibility for another person’s life. You may feel overwhelmed, confused, or even guilty about the idea of seeking guardianship.
But it’s important to remember that guardianship is not about taking away your loved one’s independence or autonomy. It’s a legal tool designed to provide the support and protection they need to live a safe, healthy, and fulfilling life.
One of the primary factors in determining the need for guardianship is assessing their “capacity.”
When we talk about “capacity,” we’re basically asking if someone can understand what might happen because of their choices and if they can make good decisions about their own life.
Courts in North Carolina look at a few key things when determining capacity:
Just because someone has a disability doesn’t automatically mean they need a guardian. Lots of adults with disabilities are capable of making informed choices, especially if they have the right support and tools.
Guardianship should only be on the table if someone’s disability is really getting in the way of their decision-making abilities, and nothing else is enough to keep them safe and healthy.
In North Carolina, there are three types of guardianship arrangements:
A guardian of the person is responsible for making decisions about the ward’s personal care, including:
This type of guardianship is appropriate when the individual needs help with daily living activities and personal decision-making but does not necessarily require assistance with financial matters.
A guardian of the estate is appointed to manage the ward’s financial affairs and assets. Responsibilities may include:
This type of guardianship is suitable when the individual is unable to manage their financial matters due to mental incapacity or other limitations.
A general guardian is responsible for both the personal care and financial management aspects of the ward’s life. This arrangement combines the roles of guardian of the person and guardian of the estate into one comprehensive guardianship.
Guardianship is important for protecting adults with disabilities, but there are other options you can look into that might be less restrictive and still help the person make decisions while keeping as much independence as possible.
A person can give someone they trust (called an agent of power of attorney) the power to make decisions for them without having to go to court. They can even limit the agent’s power to only certain areas if they want.
This approach is all about giving people with disabilities the tools and information they need to make their own choices. It’s about respecting their fundamental right to make decisions about their own lives.
If someone needs help managing their money, they can choose a representative payee to receive and manage their assets for them.
A healthcare surrogate is someone a person chooses to make medical decisions for them if they become unable to do it themselves. This is a great option because the person gets to pick someone they trust to make healthcare choices that line up with their own values and preferences.
Exploring these alternatives is all about finding the least restrictive way to help resolve any issues with decision-making abilities while still letting the person keep as much autonomy and independence as possible.
If you feel that guardianship is the only option to care for a disabled loved one’s needs, the process typically involves the following steps.
If guardianship is deemed necessary, file a petition with the Clerk of Superior Court in the county where the alleged incompetent person (the “ward”) resides. The petition should include information about the ward’s identity, residence, and the reasons why guardianship is needed. It should also propose a suitable guardian.
Once the petition is filed, the court will issue a notice of the guardianship proceeding to the ward and their nearest relatives. The notice informs them of their right to object to the guardianship and the upcoming hearing date.
The court will schedule a hearing to determine if the ward is incompetent and if guardianship is necessary. The petitioner must present clear, cogent, and convincing evidence of the ward’s incompetence. The ward has the right to be represented by an attorney and to present evidence in their defense.
If the court finds that the ward is incompetent and guardianship is necessary, it will appoint a suitable guardian. The court will issue an order specifying the guardian’s powers and duties, as well as any limitations or restrictions on their authority.
After the appointment, the guardian must qualify before the Clerk of the Superior Court by taking an oath to faithfully execute their duties. If the guardian is managing the ward’s estate, they may need to post a bond to ensure the estate’s assets are protected.
Once qualified, the guardian assumes their responsibilities in managing the ward’s personal care and/or financial affairs. The guardian must file regular status reports with the court detailing the ward’s well-being and the management of their assets. The court will review these reports to ensure the guardian is fulfilling their duties and acting in the ward’s best interests.
When an individual is placed under guardianship, they retain certain legal rights and protections to ensure their best interests are prioritized. In North Carolina, these rights include:
Seeking guardianship can be a really tough process, even when you feel like it’s the best decision for your loved one. But working with our guardianship lawyers makes the process much easier.
Our legal team can:
Our guardianship lawyers are here to help you make informed decisions, protect your loved one’s rights, and make sure the guardianship arrangement is tailored to meet the disabled person’s unique needs and situation.
At Cary Estate Planning, our attorneys offer personalized guidance and advocacy for families who are looking to establish guardianship for a loved one with a disability.
If you’re thinking about guardianship, we invite you to schedule a discovery call with our team.
Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.
Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.