If a loved one suddenly becomes incapacitated without a power of attorney, who makes decisions on their behalf? You can petition the court to become the legal guardian of a minor child or incapacitated adult if the person did not name an agent under power of attorney (or in the case of a child, did not nominate a standby guardian) in their estate planning legal documents.
Turn to the experienced guardian attorneys at Brady Cobin Law Group, PLLC., for help with a nomination of a guardian in Raleigh, NC, and throughout the state. Call us today at 919-782-3500 to schedule a consultation for your guardianship petition.
What Is a Legal Guardian?
When a person becomes incapacitated or a child requires care after losing one or both parents, the court appoints a legal guardian to make decisions for the incapacitated person or child (also known as the ward). In the case of children, guardians have the same power to make decisions as a parent, including choosing where the child lives and attends school, as well as decisions involving nutrition and extracurriculars.
For adult wards, the guardian must allow the incapacitated person to help in the decision-making process as much as possible. The guardian must not infringe on the incapacitated person’s right to make decisions in areas where they are still able.
How Is a Legal Guardian Different from a Power of Attorney?
A person can legally name their own choice for financial power of attorney and healthcare power of attorney in their estate planning legal documents. However, if someone becomes incapacitated without the appropriate powers of attorney in place, they cannot name their own guardian. Instead, the court appoints a guardian for them.
Who Can Apply for Nomination of Guardian?
Petitioners for nomination of a guardian in Raleigh must file with the special proceedings division of the wake county superior court. The petitioner can be any person over the age of 18 in good legal standing. The clerk or assistant clerk of the superior court presides over any hearings and makes decisions in the case. An authorized state or human services agency representative may also file a petition.
The petitioner must provide several pieces of information about the person requiring a guardian (the respondent) in their petition, including:
- Information about the finances
- The respondent’s next of kin
- Facts indicating the respondent’s incompetence
- Other aspects of daily life
A petitioner may also recommend a guardian in their petition, although the court may not appoint that person.
Types of Guardianship in North Carolina
After the court accepts the petition for nomination of a guardian, it must determine which type of guardian the ward needs.
- Guardian of the Person. A guardian of the person maintains the care and custody of the ward, including providing living arrangements, managing personal property such as vehicles, furniture, and clothing, and managing decisions for the ward’s employment, education, or healthcare.
- Guardian of the Estate. A guardian of the estate manages the aspects of the incapacitated person’s estate, including real property, bank accounts, and lawsuit payments. For minors, this could mean managing funds from a trust, life insurance policy, lawsuit award, or other inheritance.
- Limited Guardianship. The court may only grant a guardian to make limited decisions for the ward while allowing the ward to make decisions where still capable.
The court may appoint different people as guardian of the person or guardian of the estate or may appoint a general guardian to fill both roles.
Contact an Experienced Guardianship Attorney in Raleigh, NC
For help filing a petition for a nomination of a guardian in Raleigh, NC, turn to the experienced guardianship attorneys at Brady Cobin Law Group, PLLC. We have over 35 years of experience helping our clients with estate planning, probate, trusts, and planning for incapacity. Call us today at 919-782-3500 or contact us online to schedule a consultation.