Protecting Loved Ones.  When is Guardianship Necessary?

Due to incompetency, Mom is harming herself physically or financially (e.g., she forgets to take her medicine which keeps her alive, forgets to turn off the stove which leads to a fire, or she’s unable to remember her assets or to pay bills).  Perhaps your widowed son passed away leaving assets, a minor child, and no trust for that child.  Maybe your incompetent adult special needs child can’t make financial or medical decisions, can’t live independently, or can’t apply for certain governmental assistance.  Establishing guardianship may be the only solution to manage these issues.

North Carolina has three different types of guardianship to protect a minor or an incompetent adult:  guardian of the person, guardian of the estate, or general guardian.

1.     “Guardianship of the person” enables the guardian to make living, health care, vocational, educational, legal, and other decisions for the “ward.”  The ward is an adult or minor for whom a guardian has been appointed by the Clerk of Court.  Different from a power of attorney or health care power of attorney which only allows you to help/assist an incompetent adult, guardianship may be the only solution to prevent the person from doing physical or financial harm to himself or herself.  Unfortunately, except in the case of a minor, until an adult is found to be incompetent by the court, such person is presumed to be able to handle his or her life.

2.     “Guardianship of the estate” enables the guardian to take custody and control of the ward’s assets for the benefit of the ward.  If a minor child receives assets outright (e.g., no trust), guardianship is usually the only option to manage/control the funds for the minor until he or she reaches the age of 18.

3.      A “general guardian” is both a guardian of the person and of the estate.

Guardianship should be an option of last resort for incompetent adults because it removes most, if not all, of the ward’s legal rights (e.g., ability to drive, vote, hold assets in his or her name, etc.).  Applying for guardianship can be complicated and is a legal proceeding.  Contact the experienced estate planning attorneys at Weaver, Bennett & Bland, P.A. to find out if we can help with your family’s situation.