How to Seek Guardianship of an Elderly Family Member

If you’re concerned about an elderly family member’s well being, it may be time to seek guardianship. Guardianship can ensure your loved one is taken care of while acting in their best interests.

When boiled down to its most basic parts, appointing a guardian for an elderly family member is a two-step process. First is the incompetence phase; second is selecting an appropriate guardian. During the proceeding, the person believed to be incompetent is referred to as “the Respondent," while the person seeking guardianship is normally referred to as “the Petitioner.”

The Petition for Adjudication of Incompetence

The first step in the guardianship process begins with filing a Petition for Adjudication of Incompetence. It should be filed with the Clerk of Superior Court in the county where the incompetent person resides, along with the payment of the associated filing fee. Since it has such serious legal consequences, the Respondent must be personally served by the Sheriff with the Petition. The Petition must include:

  • The name, age, address and county of residence of the elder person who is believed to be incompetent;

  • The name, address and county of residence of the person commencing the guardianship process and his interest in the proceeding (ie: he is the son of the Respondent);

  • A general statement of the Respondent’s assets and liabilities with an estimate of the value of any property;

  • A statement of the reason(s) the Petitioner believes the elderly person is not capable of making his own decisions or of understanding the consequences of his decisions and why an adjudication of incompetence is being sought. Examples include, but are certainly not limited to, Alzheimer's disease, dementia, mental illness, and senility; and

  • The name, addresses, and county of residence of the Respondent’s next of kin as well as anyone known to have an interest in the incompetency proceeding. The Respondent’s next of kin will depend upon the family circumstances in each case but may include a spouse, children and siblings.

The Guardian ad Litem

Within five days of filing the Petition, the Clerk will appoint a guardian ad litem (commonly referred to as GAL), and set an incompetency hearing. Anyone who is alleged to be incompetent is entitled to have an attorney of their own choosing or a GAL appointed to look out for their best interests.

The GAL will meet with the Respondent in person prior to the hearing and will attempt to determine the Respondent’s wishes regarding the incompetency proceeding and any proposed guardian. The GAL will report the Respondent’s wishes to the Court at the incompetency hearing and may make a recommendation to the Court about what is in the best person of the Respondent, if that differs from the Respondent’s express wishes.

The Incompetency Hearing

Next, the Clerk will also schedule an incompetency hearing, usually between 10 to 30 days after the service of the Petition and notice of the incompetency hearing on the Respondent. The Clerk will send a notice of the date, time, and courtroom in which this hearing will be held to the Respondent, the next of kin and any interested persons listed in the Petition.

The incompetency hearing is a mini trial to determine whether the Respondent is competent or not. The Petitioner, Respondent and any interested party may present evidence to the Court that is relevant to show either the elderly person’s competence or lack of competence. It is wise to have either the live testimony of or an affidavit from at least one of the Respondent’s treating physicians, because the Court tends to value and rely upon the medical opinion of a doctor in determining whether the elderly person is incompetent.

Once the Court has heard all the relevant evidence, the incompetence phase ends with a determination by the Court as to whether or not the Respondent is incompetent. If the Court finds that the Respondent is not incompetent, then the legal proceedings end with no further action taken. On the other hand, if the Court declares the Respondent to be incompetent, then the legal proceeding continues on to the second step: the selection of a guardian.

Selecting a Guardian

After the Court has determined an individual to be incompetent,  the Court will proceed to determine of who is best suited to serve as guardian for the incompetent person. Any adult individual, corporation, or impartial public agency, such as the Department of Social Services, is qualified to serve as a guardian. If a will recommends a particular guardian, the Clerk may follow that recommendation—though they are not required to if the Clerk determines that a different appointment is in the best interest of the incompetent person.

There are three different types of guardians: guardian of the person; guardian of the estate; and a general guardian. Each type of guardian holds different responsibilities and authority.

Guardian of the person

A guardian of the person has authority to make decisions related to the incompetent person’s care, comfort, and maintenance. A guardian of the person has the power to decide where an incompetent person resides, and to make decisions pertaining to the incompetent person’s physical and mental health.

guardian of the estate

A guardian of the estate has authority over the incompetent person’s finances and assets. A guardian of the estate may take possession of the incompetent person’s assets, receive income, pay bills, pay taxes, buy or sell stock, and pay for any expenses necessary for the incompetent person’s care and maintenance.

general guardian

Finally, a general guardian has authority to do everything that both a guardian of the person and a guardian of the estate can. Unlike a guardian of the person, a guardian of the estate and a general guardian are both required to post a monetary bond with the Court and file annual accountings with the Clerk of all transactions related to the incompetent person’s assets and finances.

Navigating the guardianship process can seem like a difficult or lengthy process. But an experienced attorney can guide you through the proceedings and ensure that your family members are protected and cared for when they need it most.

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About the Author

Colleen L Byers attorney at Bell Davis Pitt in Winston Salem NC

Colleen L. Byers

Colleen Byers concentrates her practice in the areas of business litigation, professional malpractice defense, guardianship, and employment law.
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