You would never choose to become unable to care for yourself or make your own decisions. No one wants a guardian as an adult. But what exactly is the legal definition of “incapacitated?” Learn what “incapacitated” and “incompetent” mean in the legal realm. 

Why We Avoid Planning

We spend most of our young life fighting for the ability to make our own decisions and be “in charge” of our own lives. Losing your ability to make decisions for yourself is not desirable. It is hard to imagine needing someone to care for you like a child again. None of us want to think about that scenario happening in this life. 

But the fact is that an estimated 1.3 million adults are under guardianship in this country, perhaps 85 percent of them over 65. (1) Thinking about “someday you’ll be old” and might need someone to make decisions for you is very different than actually planning for that day. 

So how do you end up with a guardian anyway?

A Judge Makes the Decision

Incapacitation is a term that legally means the same as incompetent; you can no longer manage your own affairs and property or communicate about essential decisions in your life. 

In North Carolina, an incompetent adult lacks sufficient capacity to manage their own affairs or make or communicate important decisions concerning their family or property. The lack of ability can exist because of mental illness, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or other similar causes.

Who Can File a Petition?

Anyone can file a petition with the county clerk that starts a state assessment for someone’s need for a guardian. The petition includes a sworn statement and a filing fee. The court clerk then sets the hearing while the sheriff’s office serves the petition and notice of hearing to the suspected incompetent person. The person making the petition is called the “petitioner.” The petitioner mails copies of the petition and notice of the hearing to the “incompetent” person’s spouse and relatives. Before the hearing, the clerk may order medical, psychological, social work, and other evaluations. Both sides of the issue may receive a written report of the results. (2)

The petitioner and the “incompetent” may both hire attorneys to appear with them at the hearing. Hiring an attorney is advisable because of the serious consequences at stake in this type of proceeding.

What Does it Mean for Me?

In North Carolina, if a judge declares you “incompetent” or “incapacitated,” the judge can appoint a guardian for you. The judge determines who the appropriate guardian is at the hearing. This type of hearing is challenging for you and your family.

You do not get to decide who should be your guardian. You and family members or loved ones may also bicker over whether you need a guardian and who it should be. All of the family drama plays out in the courthouse in public. Your frailties and difficulties are discussed in the open courtroom in-depth. This process is public and emotionally exhausting for most involved.

If a judge appoints a guardian, you are under the guardianship of the designated person. In some states, this is called a conservatorship. The guardian or conservator’s job is to make personal and financial decisions for you. 

If the judge appoints a social services director or assistant director as your guardian, there will be ongoing casework as they continually assess you. If a family member or someone else is declared the guardian, they will be required to keep up with and send in tedious financial records and other ongoing record-keeping details.

How to Avoid a Guardianship

If you’d rather avoid any courtroom drama, you can talk with your attorney about drawing up a durable general power of attorney. This legal document is a type of estate planning that lets you determine who will make decisions for you if you become incompetent or incapacitated. Unlike guardianship, a POA can make decisions without reporting to a court. The rules or standards of a judge.do not limit a POA.

Get Help

Talk with an experienced estate planning attorney to set up plans for your future. A knowledgeable estate planning attorney can help you make future decisions now so that you and your family are not caught off guard. At Vail Gardner Law, we’d like to walk you through the steps to make your future decisions now.

 

1. https://www.aarp.org/caregiving/financial-legal/info-2018/court-ordered-guardianship-separates-family.html
2. https://www.ncdhhs.gov/assistance/guardianship/guardianship-alternatives-to-guardianship