Guardianship
Guardianship is another means of substitute decision-making during a period of a person's incompetence or incapacity; generally, these proceedings are
initiated in the absence of Powers of Attorney. Adults are presumed competent to make decisions, however unwise they may be, and have the freedom to
make bad decisions even if criminal consequences may result. However, a person may be rendered unable to make informed, voluntary decisions because
of illness, injury, or incapacity. Guardianship is a means of protecting such an individual, even if less preferable than a well-drafted Power of
Attorney.
Any person may file an incompetency and guardianship proceeding whether or not the principal has executed a Power of Attorney. As a practical matter,
however, the majority of incompetency and guardianship proceedings are filed because a person has not executed valid Powers of Attorney.
An adult must be adjudged incompetent by the Clerk of Superior Court, based on admissible evidence that meets the "clear, cogent, and convincing"
burden of proof. An attorney is appointed to represent the best interests of the alleged incompetent person. In the event the alleged incompetent
person denies that he or she needs a guardian appointed, a formal trial will be held by the Clerk of Superior Court on this issue. The alleged
incompetent person may request a jury trial. Obviously, this adversarial proceeding may cause a great deal of trauma to alleged incompetent person
and his or her family.
In the event a person is determined to be incompetent, at least one guardian will be appointed. A guardian must act under court supervision, and
if he or he she has authority over assets, will have to file annual accountings and maintain an annual bond. Court approval for certain actions is
required, and in this case, an attorney must generally be retained.
Guardianship generally supersedes a Power of Attorney, although a Power of Attorney may nominate the agent to be appointed guardian. The court
must go along with this nomination unless "good cause" is shown to appoint someone else.
Gil File is the former Wake County Clerk of Superior Court, and he has presided over approximately
1,000 incompetency and guardianship proceedings, including those held in hospital rooms, at Dorothea Dix Hospital, or at Central Prison.
Gil's experience in contested and unusual guardianship proceedings has given him a unique ability to help prevent our clients from going
through similar circumstances.
While a guardianship proceeding may "trump" a Power of Attorney, Gil has spent a great deal of time crafting Powers of Attorney that may
avoid inflexible guardianship procedures in the interests of justice.
Whether you need estate planning services to avoid a guardianship or need representation during a guardianship, our office is prepared
to give you the highest quality service, analysis or representation.