Guardianship Attorney in North and South Carolina
Facing the possibility of becoming a guardian, placing a loved one under guardianship, or dealing with contested guardianship can be emotionally challenging. There are many things to consider and multiple factors that go into making the decision. That’s why it’s important to work with an experienced and compassionate guardianship attorney like those at Collins Family & Elder Law Group.
We understand the importance and complexities of your decision and are committed to guiding you through the entire process to ensure you and your loved ones feel supported during this time.
What is Guardianship?
Guardianship is a legal relationship in which an individual (the guardian) is appointed by a court to make personal and/or financial decisions on behalf of another person (the ward) who is unable to make such decisions independently.
Guardianship is typically established when an individual, often due to age, disability, or incapacity, is unable to manage their own affairs or make decisions in their best interest.
There are two main types of guardianship:
- Guardianship of the Person: This type of guardianship involves decision-making authority over the personal aspects of the ward's life, such as medical care, living arrangements, education, and other day-to-day matters.
- Guardianship of the Estate (or Guardian of the Property): This type of guardianship grants the guardian authority over the financial affairs and assets of the ward. The guardian is responsible for managing the ward's finances, paying bills, and making financial decisions on their behalf.
The process of establishing guardianship typically involves the following steps:
- Petition: A person (often a family member or concerned party) petitions the court to establish a guardianship. The petition outlines the reasons why guardianship is necessary and provides information about the proposed guardian's qualifications.
- Notice and Hearing: The court reviews the petition and, if deemed necessary, schedules a hearing. Notice of the hearing is provided to the proposed ward, and other interested parties, such as family members, are typically given an opportunity to express their views.
- Evaluation: The court may appoint a guardian ad litem or another professional to evaluate the circumstances and report to the court on the necessity of guardianship.
- Court Decision: After considering the evidence presented, the court decides whether guardianship is warranted. If so, the court will appoint a guardian and specify the extent of their authority (guardianship of the person, estate, or both).
- Ongoing Oversight: The court often maintains ongoing oversight of the guardianship to ensure that the guardian is acting in the best interests of the ward. Guardians are typically required to provide regular reports to the court.
It's important to note that guardianship is a significant legal arrangement that involves a transfer of decision-making authority from the ward to the guardian. In many cases, efforts are made to explore less restrictive alternatives, such as powers of attorney or supported decision-making arrangements, before resorting to guardianship. The goal is to balance the need for protection with the individual's autonomy and independence to the greatest extent possible.
Experienced Guardianship Attorneys
Advocates for your family.
The decision to pursue guardianship for your loved one can be a difficult and emotional one. Sudden changes, unforeseen circumstances, or incapacitating illness may bring you to the realization that your loved one is unable to communicate or manage their healthcare or financial needs. If guardianship is pursued through the court system, our North and South Carolina guardianship attorneys take seriously the need for dedicated and caring advocacy during this process. Some of the ways we can help you during this process include:
- Determining when a person’s mental status requires petitioning for guardianship with the court.
- Assisting and guiding your family through the guardianship process from start to finish.
- Representation in contested guardianship proceedings.
- Representation in removal or modification of guardianship proceedings
- Advisement of guardians concerning their powers and responsibilities in administering the guardianship estate.
Comprehensive Guardianship Solutions
At Collins Family & Elder Law Group, our guardianship lawyers provide comprehensive guardianship solutions to North and South Carolina residents. We understand each guardianship case is unique, and we are committed to helping you through the process to ensure we meet your situation’s specific needs and circumstances.
Whether you are entering into a new guardianship or facing challenges with an existing guardianship agreement, our guardianship attorneys are here to represent you and work with you every step of the way.
Types of Guardianship
There are different types of guardianship’s, and each serves a specific purpose based on decision-making needs and responsibilities. It’s important to note that the laws and regulations regarding guardianship may vary from state to state, and responsibilities can differ accordingly, so it’s essential to work with a North or South Carolina guardianship attorney to ensure you’re following the process correctly. Here are the three main types of guardianship’s in NC and SC.
Guardianship Over a Person
This type of guardianship appoints a guardian to make decisions related to the personal well-being and care of another person, generally called a ward. The guardian can make decisions regarding the ward’s healthcare, education, living arrangements, and other personal aspects of their life. With this type of guardianship, the guardian is legally responsible for ensuring the ward’s needs are met and that they receive appropriate support and care.
Guardianship Over an Estate
In guardianship over an estate, the guardian is appointed to handle their ward’s financial and property affairs. This type of guardianship is also called conservatorship or guardianship of property, and it becomes necessary when a person owns assets or property but can’t manage them by themselves due to incapacity or other reasons.
The appointed guardian then becomes responsible for making financial decisions that are in the ward’s best interest, including managing the ward’s finances, paying their bills, and handling their investments.
General Guardianship
With general guardianship, the appointed guardian performs all the responsibilities covered by a guardian over a person and guardian over an estate. This means the guardian has the authority to make decisions for the ward regarding their well-being and financial matters. General guardianship is usually chosen when the ward needs comprehensive support and assistance in all areas of life.
Legal Duties of a Guardian
For guardianship in North or South Carolina, the appointed guardian has to fulfill a few different legal duties based on the type of guardianship.
Personal Guardianship
- Schedule and maintain healthcare appointments
- Administer prescribed medications
- Make healthcare decisions based on doctor-recommended care
- Provide appropriate living arrangements at home or in a facility
- Arrange for in-home care if needed
- Maintain education and school opportunities for minors
Estate Guardianship
- Monitor and maintain bank accounts, investments, and other assets like real estate
- Make responsible financial decisions on behalf of the ward while ensuring their needs are met
- File for and maintain eligibility requirements (where possible) for social security, disability insurance, or other assistance programs
A guardian appointed under general guardianship will be responsible for all the above tasks.
Guardianship Scenarios
So, when is a guardian needed and appropriate for the situation? There are a few different scenarios where a guardian may be appointed, including:
- Caring for a minor child that is not legally the guardian’s
- A spouse, parent, or adult sibling is no longer able to care for themselves due to a medical condition or severe injury
- Your own child has special needs or disabilities and turns 18
Is Guardianship Permanent?
Generally, no. If you have guardianship of a minor without disabilities, the arrangement will end when they turn 18. For a minor with disabilities, you must reapply for special needs guardianship if they still need care after they turn 18. For adults who need a guardian, the guardianship usually only lasts until they can take care of themselves again. If this doesn’t happen, the guardianship could be active for the rest of their life.
- Monitor and maintain bank accounts, investments, and other assets like real estate
- Make responsible financial decisions on behalf of the ward while ensuring their needs are met
- File for and maintain eligibility requirements (where possible) for social security, disability insurance, or other assistance programs
A guardian appointed under general guardianship will be responsible for all the above tasks.
So, when is a guardian needed and appropriate for the situation? There are a few different scenarios where a guardian may be appointed, including:
- Caring for a minor child that is not legally the guardian’s
- A spouse, parent, or adult sibling is no longer able to care for themselves due to a medical condition or severe injury
- Your own child has special needs or disabilities and turns 18
Generally, no. If you have guardianship of a minor without disabilities, the arrangement will end when they turn 18. For a minor with disabilities, you must reapply for special needs guardianship if they still need care after they turn 18. For adults who need a guardian, the guardianship usually only lasts until they can take care of themselves again. If this doesn’t happen, the guardianship could be active for the rest of their life.
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