Most people think guardianship is related to the care of minors. However, there are many aspects to this practice area focused around the needs of both minors and incompetent adults. Our attorneys advise clients with respect to all aspects of guardianship administration under North Carolina law, including qualification of a guardian before the probate court and preparation of an inventory and accounting for the guardianship estate, and advising guardians concerning distributions on behalf of the ward.
With respect to minor guardianships, the parents of a minor ordinarily have the power to handle the minor’s assets and make all of the medical decisions. In the event that the minor acquires assets worth more than $15,000, the minor may need a court-appointed guardian. The courts typically appoint a parent as guardian, but they do have the power to appoint another individual, when deemed appropriate.
In the event that an adult is incapacitated, he or she may need a guardian to handle his or her affairs or to make medical or other care decisions. An adult guardianship is commenced by filing a petition with the court asking for a determination that the adult lacks capacity to act for him or herself. The court does have the power to take rights away from an incapacitated person and assign those rights to a guardian.
Guardian of the Person
If the court decides that the individual has dementia, for example, and is incapable of making his/her own medical decisions, the court would rule that the person may no longer make those decisions. In such an event, the court will appoint a guardian of the person and assign to him/her the power to make medical decisions for the incapacitated person.
Guardian of the Estate
Likewise, the court may determine that the person lacks the mental capacity to handle his/her finances. In that event, the court will order the incapacitated person can no longer manage their property and will assign that responsibility to a guardian of the estate.