It is prudent to execute a healthcare and/or financial power of attorney well in advance of necessity to ensure your individual wishes are honored in the event you are unable to attend to your own needs. However, competency is required to execute a power of attorney. If you become incompetent and do not have a durable power of attorney, it will be necessary for someone to petition the court to appoint a guardian to manage your affairs.
Before appointing a guardian, the court first determines whether an individual is legally incompetent. The adjudication of incompetence is heard by the clerk of court unless the individual requests a jury. A guardian ad litem is appointed to represent the allegedly incompetent adult’s interests during guardianship proceedings if he/she does not have other legal representation. Usually medical or psychological evidence is necessary to determine whether one is competent to handle his/her affairs. A determination of incompetency requires two findings: (1) the person lacks sufficient capacity to manage his or her affairs or to make or communicate important decisions regarding his or her person, family or property, and (2) the person’s lack of capacity is due to mental illness, mental retardation, senility, injury, or some similar cause or condition. Once an individual is adjudicated incompetent, the clerk decides whom to appoint as the ward’s guardian. A guardian does not need to be a family member, but it is often someone trusted by the ward and familiar with his or her needs and lifestyle.
There are three types of guardians for incompetent adults in North Carolina. A guardian of the person makes decisions about the ward’s personal care and well-being, such as housing, medical, and maintenance decisions, but doesn’t handle the ward’s money. A guardian of the estate makes decisions regarding the ward’s property, estate, and business affairs, but doesn’t make decisions about health care. A general guardian makes decisions about the ward’s care and well-being, as well as manage his/her finances.
Guardianship duties can be limited in scope, allowing the ward to retain certain designated rights and responsibilities. Nonetheless, all guardians owe fiduciary duties to the ward. These include, but are not limited to, loyalty to the needs of the ward to guarantee his/her well-being, involving the ward in all decision-making to the extent possible and consistent with his/her ability, and ensuring the needs of the guardianship are reviewed periodically. Because general guardians and guardians of the estate handle the ward’s finances, they have additional duties such as keeping accurate records of the ward’s accounts and investments and filing timely reports and accountings. General guardians and guardians of the estate can also receive commissions for their work. To determine the amount of paid commission, the clerk considers the time, responsibility, trouble, and skill in managing the estate, and sets an amount not exceeding five percent of the estate receipts or disbursements.
A guardian can petition the court to resign if they are no longer able or willing to perform their duties. Guardians may also be removed if they are adjudicated incompetent, convicted of a felony, mismanaged or wasted the ward’s money, violated a fiduciary duty, or neglected to care for the ward. If a guardian is unfit to serve in that capacity or breached a fiduciary duty, and they are unwilling to resign, it will likely be necessary to initiate a removal action.