GUARDIANSHIPS AND POWERS OF ATTORNEY a Series by Mariah D. McKinney, Attorney & Partner of Garlock & McKinney, P.C
What is Guardianship and What Does it Have to Do With Me?
Imagine that every time you went out to eat, someone else decided what you were going to eat without asking your opinion, ordered your food for you, and then directed you to eat the meal once it arrived. Imagine feeling like an observer and an outsider in all matters concerning your own personal preferences. This is what it feels like for many people who have a Guardian appointed by the Court to make decisions on their behalf. Wouldn’t you at least want the peace of mind to know that you were the one who chose the person who is making decisions for you? Those who do not name their choice of decision-makers in legally valid Powers of Attorney give up their freedom to choose.
Guardianship is the term commonly used to refer to a person’s status after that person is determined by the Court to be incapable of making and communicating his or her own decisions and being unable to manage his or her own affairs. It is also the term that refers to the process after the Court orders that a person is legally adjudicated incompetent. The North Carolina Clerks of Superior Court in their respective counties preside over incompetency and guardianship proceedings as the Judges of Probate. A Special Proceeding is the type of Court proceeding that must be filed with the Clerk of Superior Court for the Court to determine whether a person’s lack of mental cognition or diagnosis satisfies the statutory legal standard to justify the adjudication of incompetence and the appointment of a guardian.
Once a person is legally adjudicated by the Court to be incompetent, they are referred to as the ward and their Court appointed decision-maker is the Guardian. The three most common types of Guardians are General Guardian, Guardian of the Estate, and Guardian of the Person. A General Guardian oversees a person’s financial, health-care, and personal affairs. In general, a Guardian of the Estate oversees the person’s financial affairs and a Guardian of the Person oversees a person’s health-care and personal needs. North Carolina law allows for Limited Guardianships within the three main types of guardianships.
To help avoid the necessity of Guardianship in North Carolina, a person must have a legally valid durable Power of Attorney appointing an Agent to oversee finances, a Health Care Power of Attorney and a Living Will (formerly referred to as Advanced Directives). Even though many people view Guardianship as a negative and undesired status, it may provide protection to victims of exploitation. Many elderly adults suffer as a result of personal and financial abuse, neglect, and exploitation. The Guardianship process is a means to involve the Court so the victim may receive the protection, stability and provision he or she needs.
I encourage you contact an experienced estate planning attorney today to ensure you have all of your affairs in order!
Look for the next article that will provide more information about Financial and Health Care Powers of Attorney and Living Wills.
Mariah D. McKinney, a Partner of Garlock & McKinney, P.C., has been licensed to practice law for more than fourteen years. She and her law partner, Victor C. Garlock, formed their firm approximately three years ago. Mariah provided advice and training to the North Carolina Clerks of Superior Court as an Assistant Legal Counsel and Instructional Designer with the North Carolina Administrative Office of the Courts, which is a part of the State’s Judicial Branch. Mariah also served as an Assistant Clerk of Court in both the Wake and Buncombe County Estates Divisions. As an Assistant Clerk of Court, she presided over estate and guardianship proceedings; audited and approved accountings in guardianship and estate administrations; and ruled on petitions for fees and commissions.
Mariah’s practice areas include estates, guardianships and trusts law. She also supports the management of Fidelicare, Inc. with her law partner who is the president and founder. Fidelicare is a fiduciary support business that provides a variety of services to executors, guardians and trustees. Mariah and Victor are also available to serve in the roles as executor, trustee and financial agent under durable powers of attorney. Although Mariah considers herself to be socially liberal in many ways, she is a conservative Christian at heart. She believes in every person’s right to choose their own religious and political views. This primary value motivates her to be an advocate for every person’s right to choose his or her own legal decision-makers.
Mariah D. McKinney
Garlock & McKinney, P.C.
Attorneys at Law
206 East State Street, Suite 2
Black Mountain, NC 28711
T (828) 357-4510 extension 103
F (828) 357-5266