Guardianship is the State’s process for addressing an individual’s financial and health care decisions when he is no longer able to do so himself.

A guardianship proceeding begins when a petition is filed with the probate court, seeking to have someone declared incompetent. A jury or in some cases the probate judge (called the Clerk of the Superior Court in North Carolina) would then hear evidence as to whether the person has the ability to care for herself. If the jury or judge finds that the individual is unable to care or make decisions for himself, then that person is declared incompetent, and becomes a ward of the court. Once declared incompetent, the judge would appoint a guardian, authorizing her to make decisions for the ward’s personal care (e.g. medical decisions) and/or to handle the ward’s finances.

Maintaining control is often a top objective of estate planning clients. Guardianship proceedings are in every sense the antithesis of control. Given the public nature, costs, and inconvenience of a guardianship proceeding, few would opt to undergo this process should the need arise. While we can’t prevent another from petitioning the probate court to determine our competency, there are steps we can take to plan for the loss of control to be managed on our terms.  However, so few people do, and sadly it is often too late to do any kind of planning once the need to do so is fully realized.

The potential to lose control is present with every breath.While we can’t control when or if that loss of control occurs, a good estate planning attorney will be able to prepare you and your family to navigate a loss of control in the most dignified manner. While we all think of estate planning as death planning, perhaps it should primarily be thought of as life planning. You can prepare and contact an estate planning attorney to know more about these.