Guardianship provides an important option for adults who are no longer able to manage their own affairs. From personal decisions to financial matters, a guardian can ensure that an incapacitated adult receives the care they deserve.
However, the process of obtaining guardianship protections is complex. After all, the courts must ensure that a guardianship is necessary and that it does not intrude on the rights of the individual. If you have questions about this legal process, do not hesitate to seek out the guidance of a Raleigh guardianship lawyer. A knowledgeable attorney could explain the role of a guardian and help ensure every requirement is met.
A guardianship is a type of legal relationship where a person is appointed by a court of law to act on behalf of someone who lacks the capacity to care for themselves. This arrangement is only appropriate in cases where a person is unable to make basic decisions regarding their medical and financial welfare. Although the court empowers the guardian to make these important decisions, the law requires them to include their ward in the decision-making process whenever possible.
Guardianships can cover a variety of responsibilities. In some cases, a guardian might only be responsible for their ward’s medical decisions. For other situations, a guardianship could be limited to managing financial matters. This arrangement can also allow a guardian to cover all of their ward’s legal needs if necessary. A seasoned attorney could help a Raleigh resident determine the right guardianship arrangement for their specific situation.
When making a decision regarding a guardianship, the court must determine if a person is competent. Only upon a finding of incompetency can the judge agree to a guardianship. Incompetency describes an adult who does not have the capacity to make important decisions or communicate their wishes. This could include everything from their medical care to finances to decisions about the care of their family.
Given what is at stake, guardianship is not granted lightly. A finding of incompetency requires more than evidence of bad decision-making or irresponsibility. It requires proof that a person lacks the mental capacity to make decisions at all. For example, a person who understands they have limited financial means but chooses to buy a motorcycle anyway is simply making a questionable decision. While going into debt might not be wise, it does not mean that the person is incompetent.
Incompetency would involve a person who spends their money without comprehending that it could run out, or someone who does not have the mental capacity to understand that wasting their finances could have a harmful impact on their life. A nearby attorney who focuses on guardianships could explain the relevant requirements to a proposed ward to ensure the arrangement is legal and appropriate.
Ultimately, the power to select a guardian rests with the Clerk of the Superior Court. This elected position holds final say on all guardianship matters, regardless of the wishes of friends, family, or the prospective ward. Any adult who is legally competent could qualify to serve as a guardian. The clerk will make this decision based on the best interests of the proposed ward.
In some cases, a person could identify an individual they wish to act on their behalf in the future, should they become incapacitated. An individual could designate someone as a potential guardian using a health care power of attorney or similar estate planning tool. It is important to remember, however, that the court has final say on selecting the guardian.
According to state law, it is possible to reverse a guardianship. This is known as a restoration of rights. Once a restoration of rights is completed, a ward is once again fully in control of their own financial and legal affairs.
However, a ward cannot simply reverse a guardianship on their own once it is in place. Instead, they must file a written petition with the Clerk overseeing the county in which the guardianship was originated. The ward must also provide the guardian with notice of their motion to reverse the guardianship.
Additionally, it is possible to change or modify the terms of the guardianship. For example, a guardian who feels they are no longer up to the task could ask the court to relieve them of the responsibility. This also requires a formal motion approved by the Clerk of the Superior Court.
Those without an extensive background in trusts and estates law are likely unfamiliar with the guardianship process. If you are considering this arrangement, a Raleigh guardianship lawyer could provide valuable insight on whether the legal requirements are met in your loved one’s case. If you have any questions, call today to discuss with our dedicated legal team.