When most people hear “guardianship,” they may think of children and the people who take care of them. Whether a parent, a grandparent, an aunt or uncle, or someone else close to the child, a guardian is responsible for their wellbeing. But guardianship can also be an issue that affects adults. Any person who does not have the capacity to make decisions for themselves may need a guardian who can protect and advocate for their best interests. This does not mean that an adult with a guardian cannot make their own choices, though. A guardian must protect the right of the ward, or the person who needs a guardian, to make their own choices.
For an adult to be appointed a guardian in North Carolina, a court must find them to be incompetent. Incompetence is a legal standard that must be backed up with convincing evidence. Someone may be deemed incompetent for many reasons, including mental illness, an intellectual or developmental disability, autism, senility, disease, or injury.
Providing convincing evidence of incompetence is important because a person who is appointed a guardian will lose some rights that they would otherwise have. A guardian might be able to make decisions about where their ward lives, what medical treatment they receive, and how to handle the ward’s money and property. If a guardian is appointed when they should not be, or the wrong person is appointed to be a guardian, there is a risk that the ward could be exploited by their guardian.
There are alternatives to guardianship which may preserve more of the ward’s rights, and it’s arguable that these alternatives should be preferred over guardianship whenever possible. For example, somebody who is battling a terminal illness or other medical condition which could leave them incompetent may want to look into Health Care Power of Attorney. This gives a person the option to choose who they want to make medical decisions for them once they are no longer able to decide for themselves. Or a person may wish to have an Advance Directive for Natural Death, also called a “Living Will,” that gives instructions for what type of medical care to provide or not provide in potential future situations.
For people concerned about incompetence and money management, a joint bank account might be a better alternative to guardianship. A person who is concerned about money management for an intellectually or developmentally disabled person may want to look into a Special Needs Trust. This is a special type of trust that makes sure a person with special needs will continue to be eligible for benefits like Medicaid and Supplemental Security Income in the future.
In general, full guardianship of another adult is probably more restrictive than what most situations call for when a person is considered legally incompetent. But the alternatives listed in this blog, along with many others, can still keep your loved ones protected while affording them fundamental freedoms and room to make their own decisions.
At King Law, there are attorneys throughout North and South Carolina who handle these types of cases and can represent you in this unique situation. Call our toll-free number at 888-748-5465 (KING) to request a consultation with one of these experienced attorneys.