When someone you love begins to struggle with making safe or sound decisions—whether due to age, illness, disability, or injury - the question of legal guardianship may arise. In North Carolina, guardianship is a legal relationship created by the court in which one person (the guardian) is appointed to make decisions on behalf of another person (the ward) who is deemed legally incapacitated.
This blog will guide you through the fundamentals of guardianships in North Carolina, the types of guardianship available, the process of becoming a guardian, and how this legal tool helps protect vulnerable individuals and their property.
What Is Guardianship?
Guardianship is a court-supervised process that authorizes a person or entity to make legal, medical, financial, or personal decisions for another individual who cannot do so themselves due to a condition like dementia, developmental disability, traumatic brain injury, or mental illness.
Guardianships in North Carolina are governed by Chapter 35A of the North Carolina General Statutes. The process involves filing a petition with the local Clerk of Superior Court, undergoing a hearing, and determining whether the respondent (the person for whom guardianship is being sought) is legally incompetent.
Types of Guardianship in North Carolina
North Carolina recognizes several types of guardianship, each designed to meet different needs. These include:
- Guardian of the Person: This guardian is responsible for making decisions related to the personal care, health, housing, and well-being of the ward. The guardian might decide where the ward will live, approve medical treatments, and ensure proper care.
- Guardian of the Estate: This guardian manages the ward’s financial affairs, such as paying bills, managing investments, and safeguarding assets. The guardian of the estate is required to file an inventory of the ward’s assets and provide regular accountings to the court.
- General Guardian: A general guardian is a combination of both a guardian of the person and a guardian of the estate. They oversee both personal and financial decisions.
- Limited Guardianship: In some cases, a person may need help only in specific areas. A limited guardianship grants the guardian authority over only those areas where the ward cannot make decisions independently. This option respects the ward’s autonomy while still offering needed protection.
Who Can Be a Guardian?
Almost anyone can serve as a guardian in North Carolina, including a family member, friend, or a professional such as an attorney or public guardian. The court will prioritize appointing someone with a close relationship to the ward, but will ultimately select the individual or agency that best serves the ward’s interests.
To serve as a guardian, the person must be at least 18 years old, mentally competent, and not have a felony conviction that would disqualify them from serving.
The Guardianship Process in North Carolina
The process begins when someone files a petition for adjudication of incompetence with the Clerk of Superior Court in the county where the respondent resides.
The key steps include:
- Filing the Petition – The petition must include specific information about the respondent’s condition and why guardianship is necessary.
- Appointment of a Guardian ad Litem (GAL) – The court will appoint an independent attorney (GAL) to represent the respondent’s interests during the proceeding.
- Medical Evaluation – The court may require a medical or psychological evaluation to help determine the respondent’s capacity.
- Hearing – A formal hearing will be held, and the court will determine whether the respondent is legally incompetent. If so, the court will appoint a suitable guardian.
- Issuance of Letters of Guardianship – Once appointed, the guardian receives legal documents known as letters, which authorize them to act on behalf of the ward.
Why Guardianship Is Important
Guardianship is more than a legal process—it’s a protective measure. It ensures that individuals who are unable to manage their health, finances, or safety receive the support they need.
Guardianship helps prevent:
- Financial exploitation by unscrupulous individuals
- Medical neglect due to a lack of capacity to seek care
- Unsafe living conditions
- Poor decision-making due to mental illness or cognitive decline
Guardianship also brings peace of mind to family members who are worried about a loved one’s well-being and security.
Alternatives to Guardianship
Because guardianship limits a person’s independence, the court requires that less restrictive alternatives be considered first. Some of these include:
- Powers of Attorney (POA) – Financial and healthcare POAs can be executed while the person still has capacity.
- Representative Payees – Appointed to manage government benefits like Social Security.
- Trusts – Can be used to manage and distribute assets while protecting a person’s interests.
However, if the person lacks the capacity to execute these documents, guardianship may be the only viable legal solution.
Rights of the Ward
Even when a guardianship is established, the ward retains certain rights unless the court explicitly removes them. These may include the right to:
- Vote
- Marry
- Make certain personal decisions
- Be treated with dignity and respect
- Request a review or termination of the guardianship
Courts aim to impose the least restrictive form of guardianship necessary, respecting the ward’s autonomy whenever possible.
How Hicks Guinn Law Can Help
At Hicks Guinn Law, we understand that the decision to pursue guardianship for a loved one can be emotional and complex. We are here to guide you through every step of the guardianship process in North Carolina with compassion, clarity, and skill.
Our team can assist with:
- Filing petitions and supporting documents
- Representing you at guardianship hearings
- Advising on alternatives to guardianship
- Helping you navigate disputes or concerns about care
- Serving as Guardian ad Litem when appointed by the court
Whether you are pursuing guardianship for an elderly parent, a disabled adult, or a minor child, Hicks Guinn Law is committed to protecting the dignity of your loved one and making the legal process as smooth as possible.