When a person no longer has capacity to manage their financial affairs or make health care decisions, and they do not have the necessary estate planning documents in place authorizing another to handle their affairs, it may be necessary to seek an appointment of a guardian. In North Carolina, a guardianship appointment is handled through probate court. The probate court is charged with determining whether someone is incompetent. If the court finds that an individual is incompetent, then the court would appoint a guardian.
Just like any other court proceeding, there are several procedural rules that need to be observed. To initiate the proceeding someone must petition the court. To obtain a hearing, all interested parties must be notified of the petition and given an opportunity to respond. To protect the interest of the person for whom guardianship is being sought, the court appoints a guardian ad litem to assess the need for a guardianship, and if so, the appropriateness of the proposed guardian, as well as the level of authority needed to be granted to the guardian. There is a public hearing for which all sides present evidence as to the need and appropriateness of the guardianship. Once appointed, the guardian must post a bond and file annual accountings with the court.
In short, guardianship proceedings are time intensive, expensive and completely public. With proper estate planning, guardianship can almost always be avoided.