Charlotte Guardianship Lawyer

Charlotte Guardianship Attorney

Guardianship refers to a legal situation in which a court-appointed guardian takes on the responsibility of making vital decisions on behalf of another individual who lacks the capacity to make such decisions for themselves. For those facing uncertainties or legal actions related to the topic of guardianship in North Carolina, a qualified Charlotte guardianship lawyer from Orsbon & Fenninger, LLP, can play a pivotal role in ensuring that you understand the process to come.

Guardianship is a complex legal topic and one that can be sensitive and emotionally fraught. Navigating these various challenges is an extremely daunting task for anyone without the requisite legal background, but with the assistance of the highly effective guardianship attorneys at Orsbon & Fenninger, LLP, families and other concerned parties can ensure that their loved ones receive the care and protection they need while also having their rights respected and upheld.

Understanding Guardianship: How Does Guardianship Work in North Carolina?

Under North Carolina law, a guardianship is a legally binding relationship wherein a designated individual (or agency), known as the “guardian,” assumes the responsibility of making decisions and otherwise acting on the legal behalf of another individual, the “ward.” The ward is someone whom the law has deemed incapable of managing their own personal affairs, finances, property, etc. The establishment of guardianships must be mandated by a court authority.

The exact role of the court-appointed guardian will be informed by the circumstances of the situation that led to the guardianship and can, therefore, look different from case to case. In general, a legal guardian serves as an advocate and surrogate decision-maker for their ward.

Despite the ward’s “adjudication of incompetence” (the legal term for how the state decides someone is not capable of managing their own affairs), a responsible guardian should always ensure the ward can actively participate in decisions about their own life. At its most effective, guardianship protects vulnerable individuals while also preserving their right to make the day-to-day choices that fall within their comprehension and judgment.

The Criteria for Guardianship in NC

North Carolina law allows some room for judges and other officials to explore and consider the many details and nuances of guardianship petition cases. The court must find clear, convincing evidence that the allegedly incompetent party does indeed lack the capacity to communicate their needs or otherwise manage their own life, family, and property. In North Carolina, this “lack of capacity” can be rooted in a number of different factors, such as:

• Developmental disabilities
• Persistent mental illness
• Senility, dementia, etc.
• Certain serious illnesses and debilitating diseases like cerebral palsy
• Serious substance abuse issues that perpetually or permanently affect decision-making abilities

Whatever the particular circumstances behind the case may be, guardianships are only appropriate for serious, long-term situations, as they effectively strip adult citizens of some of their most fundamental rights, albeit for their own benefit and protection. Someone demonstrating subjectively “poor” judgment or having unusual values and priorities is not valid grounds for a court to assign their decision-making rights to another party.

How Long Does Guardianship Last in NC?

Unlike other legal remedies, wherein a judge might order certain stipulations for a set length of time, guardianship is an open-ended concept in North Carolina. This is to say that a North Carolina guardianship only ends under one of the following conditions:

1. The ward’s competency is restored at a later date (as determined through official court proceedings).
2. The ward passes away.
3. The guardianship ruling is overturned by subsequent legal proceedings.

If you are involved in a guardianship that you believe is unlawful or that has been ordered erroneously, it is likely you have many questions about the third item: having a guardianship overturned and rescinded. While it is not easy to do, having a guardianship terminated, either by legally restoring competency or appealing the initial ruling on the grounds that it was invalid, is indeed possible.

You should, however, prepare yourself for the potential of a lengthy legal struggle. Because the ward is not considered “legally competent,” this can create a complex situation in which a request for the guardianship to be reconsidered must come from a third party petitioning the court, unless the guardian themselves is seeking to end the guardianship because they believe the ward is now competent.

When a guardian is behaving in a negligent or criminal way or putting their own interests before that of the ward, one strategy is to enlist the help of other people close to the situation who may be willing to testify.

Possible Alternatives to Guardianship in North Carolina

The North Carolina courts, and even the text of the law itself, tend to emphasize less restrictive alternatives to guardianship whenever they are feasible. Guardianships of adults should be reserved as a remedy for extreme situations in which someone needs extensive and continuous oversight in multiple areas of their life. In less extreme circumstances, some alternatives to guardianship that may meet some of the same needs include:

• Durable Powers of Attorney – These versatile legal documents, sometimes used in comprehensive estate planning, grant authority for a designated person (called the “attorney-in-fact”) to manage specific financial, legal, or other matters on behalf of another individual. This can offer a less invasive, more collaborative, and more focused option than a court-mandated guardianship.
• Special Needs Trusts – Of particular relevance to those with disabilities and long-term medical conditions, special needs trusts create a financial structure that allows for the closely controlled disbursement of funds to an individual. As an added benefit, funds held in trust are not considered part of a person’s private income and, therefore, will not prevent the would-be ward from also accessing government benefits.
• SS Representative Payee – This designates a responsible individual to manage the Social Security payments or other federal benefits of an individual who is unable to handle their own finances, ensuring financial stability without the need for complete guardianship for at-risk individuals surviving on fixed government incomes.
• Joint Bank Accounts – If the prospective ward’s needs are primarily in the financial realm, the establishment of a simple joint bank account allows for shared management of finances. A partner, parent, or other trusted adult has the legal authority to assist with monetary affairs, while the other account holder, the would-be ward, also gets to maintain a level of control.
• Home Health Care Services – By enabling individuals to receive necessary care and support in the comfort of their own homes, home health care services can address ongoing and daily needs without the need for the patient to be placed under guardianship.

Orsbon & Fenninger, LLP: Powerful Legal Advice for North Carolina Guardianship Cases

If you have found yourself involved in guardianship proceedings or if you are preparing to file a petition to have a loved one placed under a guardianship, the guardianship law team at Orsbon & Fenninger, LLP, can help you understand your options, protect your rights, and steer your case to the optimal outcome. Contact us today to get started with a confidential consultation.