by Jordan Arroyo
"My daughter is nearly eighteen years old. I wake up and help her with her morning routine every day. I make sure that she is showered, dressed,
fed, and ready to face the world with a smile. She is nonverbal, and she is shy around new faces. Even though she will be an adult soon, she just isn’t ready to live on her own. How do I keep her safe? How can I make sure that she gets the proper medical treatment? How can I make sure she can access her inheritance and use those funds for her benefit?"
These are common concerns among would-be guardians. When your loved one suffers from a severe mental disability that prevents her from managing her safety, money, or medical care, you might want to consider petitioning for guardianship. A successful guardianship petition will give the guardian the ability to care for the ward’s person, their estate, or both.
North Carolina recognizes that some people “require the assistance of a guardian in order to help them exercise their rights, including the management of their property and personal affairs.” Courts, however, do not grant guardianship lightly. It is a last resort solution. North Carolina courts will grant guardianship only when there are no less-intrusive means available. Example of less-intrusive means are the creation of a Power of Attorney, a Trust, or an Advanced Directive that would assist the individual in exercising their rights or managing their affairs.
If you think guardianship is right for your situation, you will need to understand:
The Key Players;
The Burden on the Parties; and
The Rules of the Game
The Key Players
A guardianship is a legal relationship between a guardian and a ward.
There are three kinds of guardians: (1) guardians of the person; (2) guardians of the estate; and (3) general guardians. A guardian of the person ensures that the ward lives in a safe, clean environment. A guardian of the estate responsibly manages the ward’s estate, property, and money. A general guardian is responsible for the wards person and her estate.
A ward is the person whom the court determines to be incompetent. Incompetence as it relates to guardianship is different from incompetence in everyday language. A person is legally incompetent when she cannot make decisions for herself. This is different from a person making irresponsible decisions. The ward must be unable to grasp and express the idea of what properties she owns or what care she needs in order to be deemed legally incompetent.
A potential ward must be at least 17 ½ years of age in order to be held legally incompetent. An incompetent minor or adult must “lack sufficient capacity to make or communicate important decisions concerning his person, family, or property . . . .” This is key to understanding whether a court will grant a guardianship or not. If your loved one is still able to communicate and make decisions on her own behalf, then the court will not likely grant a guardianship. The court will probably recommend a less-intrusive alternative. The goal is to preserve the autonomy of the would-be ward to the greatest extent possible.
The Burden on the Parties
If you decide to petition for guardianship, you must demonstrate by “clear, cogent, and convincing evidence” that the potential ward is unable to manage her own affairs or to make or communicate important decisions about the person’s self, family, or property. “Clear, cogent, and convincing evidence describes an evidentiary standard that is stricter than a preponderance of the evidence, but less stringent than proof beyond a reasonable doubt.” The evidence should be enough to convince the clerk of court that the potential ward is legally incompetent and requires the court to assign her a guardian.
The potential ward, if she is contesting and opposing the guardianship, must provide evidence showing that she is competent and able to handle her own affairs without the intervention of another person. Guardianship hearings, however, are not always adversarial. Potential wards are not required to argue against the guardianship petition. Courts assign potential wards a representative in court called a Guardian Ad Litem. The Guardian Ad Litem is responsible for evaluating the competency of the potential ward prior to the hearing and advocating in the best interest of the potential ward. Where the need for a guardian is readily apparent, the Guardian Ad Litem is not required to argue against the creation of a guardianship. Ideally, both sides work together to find the best way to care for the would-be ward.
The Rules of the Game
Once you understand the burden you must meet, you can prepare for your hearing. The Guardian Ad Litem, the potential ward, and the would-be guardian attend a hearing before a clerk who will decide the issue. Either the potential ward or the guardian ad litem may request that a jury be present, but a jury is not required. The jury may decide whether the potential ward is incompetent, but the clerk makes the final decision over who the guardian will be.
You may introduce evidence like documents that demonstrate the would-be ward’s reliance on others to make key decisions, her medical history, or you may even call witnesses in to testify about her capacity.
Not all evidence is admissible. You must first consult the North Carolina Rules of Evidence to ensure that the evidence you hope to produce at the hearing is allowed. You should consult with an attorneys to ensure that the evidence you have cannot be excluded under the rules of hearsay.
Once you know that your evidence can be admitted, you should bring at least three copies of any document. One copy will be for you to hold on to, another copy will go to the ward and his representative, and the third copy will go to the clerk overseeing the hearing. After the clerk enters his decision, you will have ten (10) days to appeal the decision.
If you are interested in pursuing a guardianship petition, please schedule a free consultation with our office here. Our office is passionate about helping families provide and care for one another.
About the Author
Jordan Arroyo is a law clerk at Smith Dominguez, PLLC and a third-year law student at the Campbell University Norman Adrian Wiggins School of Law. During her time at Campbell, Jordan has been involved in a number of moot court and mock trial competitions and has served as a research assistant. She has also been heavily involved in the Black Law Student Association, the Hispanic Law Student Association and the International Law Society. Jordan is bilingual.