Guardianship Proceedings in North Carolina for Persons

with Developmental Disabilities

Carolina Institute for Developmental Disabilities

UNC School of Medicine

ANTHONY D. NICHOLSON McPherson, Rocamora, Nicholson &

Nordgren, PLLC

February 11, 2015

• Court process to replace a person’s authority to make decisions for himself or herself about personal, healthcare and/or financial matters.

• Court appoints a guardian to have the authority to make decisions for that person.

• Guardianship can be tailored to the needs of the person to preserve the person’s ability to make decisions which are within his or her comprehension and judgment.

What is Guardianship?

• Two-stage process, but both are handled at the same court hearing.

• First Stage is Incompetency – evaluates a person’s ability to manage his own affairs and to make important decisions about his self, family or property.

• Second Stage is Appointment of Guardian – Court appoints the guardian and specifies type of guardianship and any limitations on the guardian’s authority.

Incompetency and Guardianship Proceedings

An incompetent adult means an adult who:

1. lacks sufficient capacity to manage his own affairs OR

2. lacks sufficient capacity to make or communicate important decisions concerning his person, family or property

An incompetent child means a child who:

1. is at least 17 ½ years old AND

2. lacks sufficient capacity to make or communicate important decisions concerning his person, family or property

Legal Definition of Incompetency

• Guardian of the Person - appointed solely for the purpose of performing duties relating to the care, custody and control of a person.

• Guardian of the Estate - appointed solely for the purpose of managing the property, estate and business affairs of a person.

• General Guardian - Guardian of Person AND Estate

Types of Guardianship

• Clerk of Court limits the authority of the guardian by permitting the person to retain certain rights, rather than giving complete authority to the guardian.

• Could be used with all three types of guardianship: general, person, or estate.

• Allows guardianship to address the needs of the individual, rather than “one size fits all”

What is Limited Guardianship?

• Limited Guardianship of the Person,

- The right to decide his own living arrangements

- The right to participate in certain programs offered by service providers or to choose jobs

- The right to make limited medical decisions

- The right to be consulted in making decisions

• Limited Guardianship of the Estate or Limited General Guardianship

-The right to manage small amounts of money and to have a bank account in his or her own name.

What rights could a person retain in a Limited Guardianship?

• Right to Vote - YES

• Right to Marry - MAYBE

• Right to Make Will or Contract - MAYBE

• Right to be a Witness in a Legal Proceeding – MAYBE

• Privilege to Drive – As determined on case by case basis by DMV.

What Rights Could a Person Retain? (even if limited guardianship NOT used)

1. General Guardianship – Guardian of Person and Estate

2. Guardian of the Person

3. Limited Guardianship

4. No Guardianship, but have Powers of Attorney – General Power of Attorney and Health Care Power of Attorney

5. No Guardianship and No Powers of Attorney

Continuum of Options

Most Restrictive

Least Restrictive

• Big Difference – Balance of Control

• Power of Attorney

- Agent cannot act against wishes of principal

- Agent is subject to the control of principal

• Guardianship

- Takes civil rights away from a person (the Ward)

and gives them to another (the Guardian)

- Limited Guardianship

Difference Between Guardianship and Powers of Attorney

• General Power of Attorney

• Health Care Power of Attorney

• Relation to Court Appointed Guardian

Types of Powers of Attorney

• No bright line test – Depends on the circumstances

• Decision to seek guardianship should not be taken lightly.

• Issues to Consider:

1. Can parents and other family members satisfy the needs of their adult child/sibling with a disability?

2. If parents were to die, would the adult child be able to get along without them?

When is Guardianship Appropriate for a Person With a Developmental Disability?

Issues to Consider (Continued)

3. Does the person with a disability have ongoing medical problems that require decisions he or she is not able to make?

4. Is the person with a disability likely to make unusually frivolous purchases or to give away his or her money without considering the consequences?

5. Is the person unusually susceptible to undue influence by others?

6. Would powers of attorney and health care directives be more appropriate for a person with a disability who is high functioning?

• Termination - Restoration of Competency Hearing

- Can be filed when guardianship is no longer necessary.

• Modification - Guardianship can be modified to further restrict certain rights, to restore certain rights or to change the type of guardianship.

• Change of guardian requires resignation or formal motion to remove for cause.

Can a Guardianship be Modified or Terminated?

Who Can Be Guardian?

1. An individual - Such as a parent, family member or other suitable person (Registered Guardian)

2. Corporation -Non-Profits (i.e. Arc of NC – LIFEguardianship) 3. Public Agency – County Department of Social

Services or local human services agency

1. Petition Filed

2. Clerk of Court Sets Date for Hearing

3. Guardian Ad Litem Appointed

4. Option of Multidisciplinary Evaluation (MDE)

5. Clerk of Court Holds Hearing

6. Bond Required for General Guardian or Guardian of Estate

7. Accountings Required for General Guardian or Guardian of Estate

8. Status Reports

What is the Procedure for Guardianship?

• Current Statute - Ancillary Guardianship for out of state ward who has real or personal property in North Carolina

• UAGPPJA - Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act – under consideration by interested parties

Interstate Guardianship Issues

• Depends on the circumstances.

• More likely to need attorney if seeking general guardianship.

• Less likely to need attorney if seeking guardian of the person. Even still, attorney could save time and frustration.

• Attorney can provide helpful advice (i.e. language for affidavits, necessary forms) or handle the whole process.

• Guardianship is one aspect of special needs planning. Attorney could advise on special needs trusts, SSI/Medicaid qualification, etc.

Do You Need an Attorney or Can You Do It By Yourself?

• North Carolina Guardianship Association – North Carolina Guardianship Manual

www.nc-guardian.org

• North Carolina Administrative Office of the Courts – Responsibilities of Guardianship in North Carolina

http://www.nccourts.org/forms/documents/1184.pdf

• Disability Rights North Carolina

http://www.disabilityrightsnc.org/guardianship

North Carolina Resources

ANTHONY D. NICHOLSON Board Certified Specialist in Estate Planning

and Elder Law McPherson, Rocamora, Nicholson &

Nordgren, PLLC 3211 Shannon Road, Suite 620

Durham, NC 27707 Phone: (919) 493-0584

Email: anicholson@macroclaw.com www.macroclaw.com