There are two types of guardianships in North Carolina. A testamentary guardian may be listed in a person’s Last Will and Testament as the individual the deceased wants to care for his or her minor child. Note that both natural parents must be deceased or their parental rights terminated by the court for a guardian to be appointed. The Clerk of Court would then appoint legal counsel or a guardian ad litem to protect the child’s interests while the formal guardianship process is completed.
In other cases, when there is a family member or other individual who is incapacitated or incompetent, it is sometimes necessary to establish a guardianship that authorizes the guardian to make necessary decisions about the disabled individual’s healthcare and finances. This is commonly seen with aging relatives who have not executed the proper power of attorney or health care power of attorney, or with minors in circumstances where the minor has inherited property or become entitled to receive monies through a personal injury settlement.
The guardian is not financially responsible for the individual, nor must the individual live with the guardian. The guardian is responsible for managing the individual’s assets to ensure the individual is cared for, has a place to live, receives necessary education, receives medical treatment, etc. The guardian is also responsible for taking legal action, when necessary, to protect the individual’s interests.
Brinkley Walser Stoner believes that proper planning and guidance is also necessary even when the planning options are limited to seeking a court ordered guardianship for an individual who may still have options relative to eligibility for public benefits and the preservation of those benefits to enhance their quality of life.
While it is not necessary to be represented by an attorney when filing a guardianship, at a minimum you may wish to consult with an estate planning attorney to ensure your loved one is adequately protected. Contact Brinkley Walser Stoner today to schedule an appointment.