The Britney Spears court battle, also known as the “Free Britney” movement, gave viewers an awareness of the use of legal conservatorships and guardianships in U.S. courts. Guardianships, however, have been practiced in American law since the 1600’s. Guardianship allows another person to have control over a person’s everyday decisions while a conservatorship grants control limited to an individual’s financial decisions. North Carolina law combines the two and refers to both systems as “guardianship.”
In a nutshell, guardianship is when the court takes over someone’s affairs when they are found incompetent (unable to take care of their family or property) and gives that responsibility to someone else. There are three different types of guardianships available in North Carolina.
(1) Guardians of the Person: responsible for all rights related to the individual including education decisions, employment, and even where the person can live.
(2) Guardians of the Estate: financial responsibility to take over real property and financial accounts.
(3) General Guardians: a combination of the first two responsibilities
How is a Guardianship Created?
Under North Carolina law, a guardianship is created when the court finds clear evidence that the individual in question is incompetent. According to North Carolina General Statutes, an “incompetent adult” is essentially an individual who cannot manage their affairs to make important decisions concerning their personal, family, or property decisions.
The North Carolina legislature has outlined that this inability to manage one’s affairs can be due to mental illness, an intellectual disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, or another similar cause or condition. If the adult is found incompetent and is then appointed a guardian, the court refers to that adult as a “ward.” In terms of the procedure to create guardianship, a person through an attorney can file a petition with the court. The court then conducts a hearing to determine if a guardian should be appointed for that individual in question, particularly by deciding if that individual is unable to take care of themselves and their affairs.
Guardianships act as an option of last resort in North Carolina because it is seen as an extreme solution. First, the court looks to other alternatives including Power of Attorney, Health Care Power of Attorney, Comprehensive Crisis Planning, or adopting a Trust or Living Will before proceeding with appointing a guardian.
If guardianship is created, an adult ward may lose some rights and decision-making choices that other adults otherwise have, such as deciding what medical treatment they receive, entering contracts, where they live, the right to purchase firearms, or in some cases, the privilege of driving.
Benefits and Potential Problems of Guardianships
When an individual can no longer take care of themselves or their affairs, such as an elderly adult, guardianship can be an effective way to protect the assets and well-being of those who have lost capacity. In North Carolina, a guardian must put the best interests of the ward ahead of their own. If they abuse that relationship, the guardian may be removed and subjected to legal liability. Given the nature of guardianship, with one individual controlling the financial accounts and decisions of another, there is potential for abuse, caretaker neglect, and the exploitation of those adults.
If you are interested in looking into creating guardianship for a loved one or friend or believe that an individual is being abused in a guardianship relationship, call King Law today. You don’t have to navigate this journey in the dark or alone. King Law Offices is a full-service law firm with an outstanding team of professionals who work diligently, creatively, and compassionately on behalf of our clients each day. Call 888-748-KING (5464) or complete a consultation request form on our website.