Guardianships and Incompetency

WHAT IS GUARDIANSHIP?

In North Carolina, guardianship is a legal relationship in which someone (the guardian) is authorized by the clerk of superior court to be decision maker for an incompetent adult. In order for a guardian to be appointed to make decisions for someone, that person must first be found by a clerk to be legally incompetent. This is known as adjudication, which just means it was determined in a court proceeding. The legal definition of incompetence means an adult is unable to manage his/her own affairs, or is unable to make important decisions concerning himself/herself, family, or property.

Guardianships are necessary for incompetent adults age 18 and up. For persons under age 18 who are incompetent, their parent(s) serve as guardian(s). Once a person turns 18 however, they have authority to manage their own affairs and make important decisions about where they live, what medical treatment they receive, and how to manage their finances. When a person's condition renders them incompetent however, a guardian needs to be appointed to handle the incompetent person's affairs for them.

Common situations and conditions that may lead to incompetency are mental illness, mental disabilities, dementia, Alzheimer's disease, psychological and psychiatric disorders, bipolar/manic-depressive disorder, schizophrenia-paranoia, intellectual or developmental disabilities, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, comatose, cognitive impairment, or similar cause. There is no conclusive list of diseases or conditions that would render a person incompetent - every person is affected by these diseases and conditions differently. Just because a person has one of these conditions does not necessarily mean that they are legally incompetent or require a guardianship.

Generally, the Guardian must:

1. Ensure that the loyalty and duty of the guardian are to the "actual" needs of the ward.

2. Make decisions that ensure the health and well being of the ward.

3. Involve the person in all decision-making to the extent possible, consistent with the ward's ability.

4. Ensure that the need for guardianship is periodically reviewed and alternatives, including restoration to competency or limited guardianship, are considered.

All guardians are bound by the law and must abide by their fiduciary duties to protect the interests of the ward. Specific duties of a guardian depend on what type of guardianship (i.e., estate, person or general) was created.

Being guardian does require guidance, and it is common for questions to arise. Contact guardianship attorney Elspeth Crawford Long should you have any legal questions about the role of a guardian or guardianship proceedings.