|Q.||My mother has Alzheimer’s and lives alone. She is having trouble remembering to do things, such as take her medicine, and I think she needs someone to make decisions for her. What can I do?|
|A.||If your mother has not already executed a power of attorney, you may want to encourage her to do so. However, she must be competent at the time she does this, so if she is not able to understand what you are asking of her it is probably too late.
In that instance, you may want to seek to have your mother declared incompetent and have yourself or someone else appointed to serve as her guardian.
|Q.||What is a guardian?|
|A.||A “guardian” is someone who is appointed by the Clerk of Superior Court to act on behalf of an incompetent adult. In North Carolina there are three types of guardians for an incompetent adult (ward), they are:
Guardian of the Person: This person makes decisions about the ward’s personal care and well-being, such as housing and medical decisions. The Guardian of the Person cannot handle the ward’s money.
Guardian of the Estate: This person handles the ward’s finances (estate), but cannot make decisions about the ward’s personal care and well-being.
General Guardian: The general guardian is someone who has the power to make personal decisions for and handle the finances of the ward.
|Q.||How is someone determined to be incompetent?|
|A.||A petition seeking to have someone declared incompetent must be filed. The person is entitled to a jury trial, or the matter may be heard before the Clerk of Superior Court.
Generally, there has to be medical or psychological evidence to assist the jury or Clerk in determining whether the person no longer has the ability to make decisions or care for himself or herself.
|Q.||My grandfather has been in a nursing home for a number of years, he doesn’t recognize any of us, and he is unable to feed or care for himself. Should I have him declared incompetent?|
|A.||The guardianship process is very emotionally trying, and is not something that should be done without carefully considering all options. The major advantage of a guardianship is that it gives someone else the legal authority to make decisions. If you do not have that legal authority AND someone questions your right to make placement or medical decisions, your instructions may be ignored. |
|Q.||How can I become a guardian of my grandchildren, who are living with me, so I can enroll them in school or make medical decisions for them?|
|A.||A guardian for a minor cannot be appointed for situations such as yours.
In North Carolina a guardian of the person (or general guardian) of a minor may not be appointed unless both natural parents are deceased or their parental rights have been terminated.
In situations where minor children are living with others, at the request of the parent(s), then a custody agreement may be needed. An attorney will need to be contacted to assist the parents and person caring for the children to prepare such an agreement.
|Q.||What if a minor child inherits or receives money from someone’s estate or life insurance -- can a guardian of the estate be appointed? |
|A.||Yes, a guardian of the estate can be appointed for a minor even if the minor’s parents are still living and caring for the minor. |