What is Guardianship and When is it Necessary?


          A guardianship is when the court adjudicates an individual incompetent and appoints another individual to act on their behalf for legal and financial, or healthcare purposes—or both. The individual bringing the petition is called the “petitioner”. The individual whom the petitioner is attempting to obtain guardianship over, is the “respondent”. If the respondent is found to be incompetent, they become known as the “ward”. If the petitioner is awarded power by the court to act on the ward’s behalf, they become known as the “guardian”. If the guardian is awarded power to act for financial and legal purposes, they are known as “guardian of the estate”. If the guardian is awarded power to act for healthcare purposes, they are known as “guardian of the person”. If they are awarded both, they are known as “general guardian”.

           To establish guardianship, there must be a hearing. The hearing is a necessary due process because part of the hearing is to determine whether or not the respondent is of sound mind. Adjudicating someone as incompetent is a deprivation of liberty because the state is saying that the individual is not competent to act for themselves—in whatever capacity the court determines. Thus, it must be proven by clear and convincing evidence that the respondent is not competent and is in need of a guardian. If the court determines that incompetency exists, they must also determine the level of incompetency in order to determine which type of guardianship is necessary.

           The second part of the hearing is to determine: 1) whether the petitioner is a fit and proper person to act as guardian; 2) whether the guardianship the petitioner is requesting is appropriate; and 3) what, if any, rights should be retained by the ward. Not every hearing proceeds as a two-part process. In fact, much of the evidence brought forth applies to each issue at once.

When is it Necessary?

           If an individual, minor or adult, is incompetent, is unable to act in a sufficient manner for themselves and has not established a general durable or healthcare power of attorney, then guardianship is likely necessary. Without a guardian, there is no one to protect the individual.

           If the individual has any sort of assets or income—including disability income—they require someone to help them manage their finances effectively. Otherwise, they risk losing their assets through scams, theft, or out wright improper management. They may also risk not having their basic needs met because the individual is unable to make consistent payments to fixed monthly bills.

           If the individual has any healthcare needs—which they will—then someone must be able to make healthcare decisions o=n their behalf. This is especially important if the individual is placed in a facility. The guardian can help protect the ward from caretaker neglect and otherwise improper treatment.

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           A power of attorney is the best method for avoiding the headache of seeking guardianship. However, if your loved one is in need, guardianship is better than no power to act on their behalf. If you have questions about guardianship or power of attorney, the attorneys at McIntyre Elder Law can help.

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Brenton S. Begley

Elder Law Attorney

McIntyre Elder Law

“We help seniors maintain their lifestyle and preserve their legacies.”

Phone: 704-259-7040

Fax: 866-908-1278

PO Box 165

Shelby, NC 28151-0165

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in Estate Planning, Guardianships by Greg McIntyre Comments are off
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