No Power of Attorney? Let’s Talk Guardianship

Guardianship.  Conservatorship.  Many have heard of it but not many understand what it is and when to pursue it.  I often speak to individuals and groups about the need for planning, specifically the importance of powers of attorney.  Despite the urgings however, many folks fail to plan accordingly and then find themselves or their loved ones in a crisis state urgently needing the advantages that planning would have provided.

First, let me explain the power of attorney.  A power of attorney, whether it’s for financial affairs or healthcare matters, allows an individual (the principal) to designate another individual (the agent or attorney-in-fact) to make decisions on his/her behalf.  The scope of authority contained within the power of attorney and granted to the agent is entirely in the hands of the principal.  The principal can even elect to limit any type of liability for acts performed by the agent.  In fact, there are penalties for individuals and institutions that fail to honor a valid power of attorney.  Essentially, it’s a very simple way to assure yourself and your loved ones that your affairs will be handled by someone you trust, without court involvement, without court supervision, and without the risk of family conflict.

Now, what if your loved one failed to execute a power of attorney and is currently incapacitated.  It’s too late at that point to execute a power of attorney because the incapacitated individual no longer has legal capacity to sign such a legal document.  Alternatively, what if you believe that the power of attorney in place was executed under duress or under influence.  What if, due to family circumstances, you fear that the power of attorney may be challenged, the power of attorney doesn’t provide clarity, or the power of attorney doesn’t protect you as the agent from being sued?  The laws in both the states of North Carolina and South Carolina provide for any interested person to petition the Court for Guardianship of an incapacitated individual.  While the two states differ on the terminology, procedures, and even the courts in which these petitions are heard, the concept remains the same.  If a loved one or even a close family friend is incapacitated, you can petition the court to appoint you as Guardian for the incapacitated individual.

These hearings are generally held in two parts, the first part being a determination of incapacity, and the second part being a determination of who would be the appropriate guardian.  For the first part of the hearing, the petitioner usually must have the testimony of a physician or a signed physician’s affidavit stating that the individual is indeed incapacitated an in need of a guardian.  The second part of the hearing requires testimony about the petitioner, and the courts delve pretty deeply into the petitioner’s personal affairs to determine whether he or she has proper motives and the ability to care for the incapacitated person.

Seeking guardianship is an extreme measure and, when you get right down to it, is essentially a way of asking the court to take the personal autonomy away from another person.  In light of this, the Courts balance the two competing interests of the importance of the incapacitated individual’s personal autonomy against the need for their protection.  Pending the hearing on the petition for Guardianship, to protect the incapacitated individual, the court will appoint an attorney as a guardian ad litem to represent the interests of the incapacitated individual and to voice an opinion to the court regarding whether they feel that guardianship is necessary and appropriate.

If Guardianship is granted, the state statutes automatically authorize certain powers to the Guardian and impose certain obligations upon the Guardian.  As Guardian, you have immense power, but you are also subject to court supervision and court scrutiny.  Guardianships are also much more expensive and are often litigious as family members may disagree about the need for guardianship or about who would be the most appropriate guardian. This is why a power of attorney is so important.  If you want your loved ones to be able to make decisions without the supervision, without the involvement of a complete stranger in the form of a probate judge or clerk of court, and without family conflict, make sure you plan accordingly.

DISCLAIMER: Yes, I am an attorney, but I’m not your attorney and your reading of this article does not create an attorney-client relationship between you and me. I am licensed to practice law in North Carolina and South Carolina, and I have based the information in this article on the laws of those two states and the United States. This blog contains general legal information only and should not be taken or relied upon as legal advice. All cases are unique and require a detailed analysis. Additionally, the laws are everchanging which causes certain pieces of article content to become outdated. You should consult with an attorney before you take any action in reliance on this information.