As an adult, if you do not have the capacity to manage your own affairs or don’t have the ability to communicate important decisions, the courts may need to appoint a guardian to assist you in managing your personal or financial affairs. Likewise for some minors, who by law are deemed to be incompetent, they may need a competent adult appointed by the court to manage their affairs if their parents are not able to do so.

In North Carolina, guardianship is the court proceeding where the court appoints a guardian to do just that: manage the personal and/or financial affairs of an incompetent individual. Guardianship is very serious business, at least in part because with the appointment of a guardian, your rights are limited. The guardian is charged with exercising your rights. Guardianships are public proceedings, can be expensive, and can be ongoing for years.

In order for the court to appoint a guardian for you as an adult, it first must make a legal finding that you are incompetent, meaning that you lack sufficient capacity to manage your own affairs or to make or communicate important decisions concerning your person, family, or property whether the lack of capacity is due to mental illness, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition. In other word, the court needs to declare you to be incompetent.

To start a guardianship proceeding, an interested person must file a petition with the court describing why he or she thinks that you are incompetent. After that, the court will appoint a guardian ad litem, usually a local attorney, to represent you and to report to the court. You may also hire your own attorney.

There are two types of guardians in North Carolina, guardian of the person and guardian of the estate. As the name imply, the guardian of the person is responsible for managing you and your personal affairs, such as your health care, where you live, and similar aspects of your life. The guardian of the estate is responsible for managing your property and finances, such as paying your bills, managing your investments and other property, buying goods and services for you, and the like. If the court appoints the same person to act as both the guardian of the person and guardian of the estate for you, that person is called the general guardian.

The court is charged to appoint a guardian that it determines will be in your best interest. That could be a family member, a friend or neighbor, a local attorney, a government agency (such as the Division of Social Services) or a corporation that does this type of work.

Once a guardian is appointed, the court oversees or monitors the actions of your guardian to ensure that he or she is acting in your best interests. To that end, your guardian of the estate or general guardian must file an initial inventory with the court, get the court to approve how your money is spent, and file annual accountings with the court to show how your assets are invested and how they have been used on your behalf. Further, if your real estate needs to be sold, your guardian needs to go through a separate court action called a special proceeding.

If you have a good estate plan, you can avoid, or at least minimize the chances, of having to go through the expensive, time consuming, and undignified process of a guardianship. If you have a durable power of attorney your agent would have the authority to make financial decisions for you. With a health care power of attorney, you would specify who you want to act as your health care agent to make medical decisions for you when you are not able to make them for yourself. An even more effective way to avoid having a guardian over your assets and financial affairs would be to create a living trust, which could be revocable or irrevocable, depending on your circumstances. With these documents in place, there is usually no need for the formal guardianship proceeding in that you would have already appointed those individuals who you trust to manage your affairs when you are no longer able to do so.

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