In North Carolina, virtually anyone can petition the Clerk of Superior Court for guardianship over an adult or a child. However, just because someone files the petition does not mean that the guardianship is necessary or that the petitioner is the best person for the job. The Clerk of Court may decide that the respondent can be best served through other estate planning avenues like a power of attorney or trust. When a guardianship is deemed the best tool for the job, the Clerk may identify another candidate better suited to serve as guardian of the ward than the petitioner.
Once the potential ward is adjudicated as incompetent, the Clerk will then evaluate the petitioner’s fitness to serve as guardian. The petitioner’s credentials, intentions, and capabilities will be considered. Sometimes, the respondent or his or her loved ones do not agree that a guardianship is appropriate nor that the petitioner is the best candidate for the role and contest the petition which can lead to a lengthy, costly, and emotional process.
Because of the emotional nature of guardianship, the petitioner will often have plenty of notice should the ward, family, or a friend plan to contest the guardianship petition. Whether contested in full or in part, the petitioner must be prepared to overcome any objections with sufficient evidence to establish that the respondent is incompetent and that the petitioner is the best candidate to serve as guardian.
When Incapacity is Contested
Just as anyone can file a guardianship petition, any interested party can contest it. The potential ward or respondent, the respondent’s attorney, family, friends, or other interested parties can contest the guardianship petition’s assertion that the respondent is incompetent and therefore, in need of a guardian.
When an adult is adjudicated as incompetent to establish a guardianship, the adjudication can result in the adult being deprived of certain rights and freedoms. An incompetent adult may lose the right to enter legally binding contracts, own or purchase firearms, serve on a jury, and even lose the right to drive in North Carolina.
Guardianship is a restrictive legal relationship that allows a guardian to have the authority to make decisions in all aspects of the ward’s life including where the ward lives, what medical treatment the ward receives, and how the ward’s estate should be managed from finances, to property, and even legal matters. Because of its restrictive nature and the potential for taking away a ward’s rights, North Carolina takes guardianships very seriously and favors the least restrictive relationship possible.
As the petitioner, it is important to approach the guardianship hearing with strong evidence to support the guardianship petition. Evidence like medical or psychological evaluations, financial records, and witness testimony from physicians, family, and other people who can attest to the respondent’s well-being should clearly show that the respondent is incompetent and therefore, unable to manage his or her affairs and finances which supports the necessity for a guardianship.
The respondent, or anyone concerned for the respondent, may contest the guardianship petition in the hopes of preserving the respondent’s rights with a less restrictive alternative to guardianship. A power of attorney can sometimes provide the respondent with the assistance needed without fully taking away his or her rights to make decisions or act concerning his or her finances, property, or other legal matters. Further, unlike a guardianship in which the Clerk of Court appoints an individual to serve as guardian, the respondent selects an individual to serve as power of attorney and also decides the scope of authority delegated.
Even if adjudication of incompetence is inevitable based on the evidence, the respondent may contest the petition in the hopes of swaying the Clerk to establish only a limited guardianship which would preserve certain rights and freedoms for the ward.
When the Potential Guardian is Contested
A petition for guardianship may also be contested because the petitioner is not an appropriate candidate for the role of guardian. The petitioner’s motivation for filing the guardianship petition or the petitioner’s qualifications may be called into question by the respondent. Just as the respondent is allowed to present evidence of his or her competency during the hearing, the respondent can also present evidence that the petitioner is unfit to serve as guardian.
Even though it was the petitioner who brought the action before the court, the Clerk may decide to appoint someone else as guardian. If the ward’s spouse, another family member or friend, or a professional guardian would better serve the interests of the ward, the Clerk can accept the guardianship petition for establishing the ward’s competency while rejecting the petitioner’s request to serve as the guardian.
If the petitioner has ulterior motivations in seeking guardianship or if family or friends contest the petitioner’s request to serve as guardian, the Clerk may appoint another person or a disinterested party or organization to the role. This is not a unique situation. In North Carolina, it is common practice for the North Carolina Department of Social Services to be appointed as guardian when the ward’s family cannot agree on who should serve as guardian or if there is not a responsible family member available or the person named by the Clerk does not accept the appointment.
The appointment of a guardian can be appealed within ten days from the date the guardianship order is entered. Guardianship is a tool that can be useful in protecting the elderly from being preyed upon by individuals who seek to take advantage of dwindling capacity, but guardianship can also be the source of elder abuse. Therefore, selecting the appropriate person or entity to serve as guardian is an important decision that can be appealed, or the guardianship can be revoked or reassigned by the Clerk if the selected guardian is not adequately serving the ward’s best interests.
Guardianship can be a complex, emotional process especially when there is disagreement as to whether guardianship is needed or who should be appointed as guardian. Consult one of our experienced attorneys to assist your family in protecting your loved ones through guardianship.