In North Carolina, guardianship is a legal relationship in which a person or agency (the guardian) obtains authority from the court to make decisions and act on behalf of a person (the ward) who cannot make decisions for themselves due to physical or mental incapacity. The guardian serves as a decision-maker and an advocate for a person after the court declares that person incompetent to manage their legal, financial, or medical affairs due to physical/intellectual/developmental disabilities or mental illness.
The court can give a guardian authority over all a ward’s affairs or order a limited guardianship that restricts the guardian’s authority or allows the ward to continue making certain decisions. A guardian should allow the ward to manage their affairs as much as possible and exercise rights within the ward’s comprehension and judgment. Guardians should protect a ward’s right to make choices to the extent they can.
How Long Does Temporary Guardianship Last in North Carolina?
A guardianship will last as long as necessary until the ward regains competency to manage their affairs. Any person interested in the guardianship, including the guardian and the ward, can file a motion for the court to decide whether the ward has regained competency. The court will schedule a hearing or a jury trial if requested. At the hearing or trial, the party who filed the motion must prove by a preponderance of the evidence that the ward can competently manage their affairs and communicate decisions. If the court or jury finds that the ward has regained competency or partial competency, the clerk of court will limit or terminate the guardianship.
When a person has an imminent need for guardianship such that waiting to hold a guardianship hearing may jeopardize the person’s safety, property, or legal rights, the court can appoint an interim guardian. A petitioner or guardian, ad litem attorney, can request the appointment of an interim guardian, or the clerk of court can appoint an interim guardian if the clerk finds an interim guardian in the person’s best interests. An interim guardianship ends on the date specified in the order establishing the interim guardianship, after 45 days, upon the appointment of a guardian or the dismissal of the case. However, the clerk can extend an interim guardianship for up to 45 days if necessary.
Can You Give Temporary Guardianship to a Family Member?
A person who petitions to establish guardianship for an incompetent person can either propose themselves to serve as guardian or nominate another person. Other people who wish to serve as the guardian can also participate in the case. The clerk of court will consider the evidence and ask questions of parties requesting to serve as a guardian to identify the party or parties most suited to serve as the guardian(s). The clerk may find that a family member will best serve the ward’s interests, although the clerk can choose a non-family member, such as a state or county social services agency.
How to Obtain Temporary Guardianship
Anyone who believes that an adult (the respondent) lacks the competency to manage their affairs can file a petition with the clerk of court to declare the adult incompetent and establish guardianship. The clerk of court will schedule the guardianship hearing. The petitioner must mail notice of the hearing to the respondent’s spouse and relatives.
The clerk can order the respondent’s medical, psychological, or other evaluations. The petitioner or respondent can also request evaluations. At the hearing, the Clerk of Court will serve as the judge; the petitioner or respondent can also request a jury trial. The petitioner must present evidence to the clerk or jury to convince them that the respondent cannot make decisions and manage their affairs. If the clerk or jury declares the respondent incompetent, the clerk will hear additional evidence on who the court should appoint as the guardian(s).
The petitioner or a guardian ad litem attorney can also request the clerk appoint an interim guardian pending a permanent resolution of the guardianship petition (either with the appointment of a guardian or dismissal of the case).
Contact a Family Law Attorney Today
When a loved one cannot make decisions for themselves or adequately manage their affairs, temporary guardianship can help your family protect your loved one’s interests and safety. Call Marshall & Taylor PLLC at (919) 833-1040 today for an initial consultation to learn more about temporary guardianship and discuss whether you or another family member should obtain guardianship over a vulnerable loved one.