Guardianship is often a touchy subject, but it comes up not infrequently among adult children caring for elder parents, especially those declining due to cognitive issues. While a parent may be comfortable ceding healthcare and financial power of attorney (POA) to their children, many delay resulting in guardianship. Guardianship is not a voluntary process. It is put in place by a court after a determination that the individual is incompetent. (“Incompetency” is a legal determination.)
What can be done if an adult child needs to pursue getting guardianship? Or what can one do if there are not family members who will serve as a guardian for someone without children?
For this post, I reached out to Leslee Sharp, of Sharp Law Offices. (To read information on POAs, go to my earlier interview with Elder Care Attorney Dee Wallis here). Leslee is one of four public guardians appointed by the Wake County Clerk of Court and has been for over 12 years.
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What is a guardian?
A guardian is someone who acts in the best interests of someone who can no longer effectively care for their finances or medical issues. In those cases where the Court does not find that the individual has a family member or friend who can act responsibly on their behalf, a Public Guardian may be appointed.
Why is it important to designate a guardian before someone loses “capacity?”
If someone designates a guardian before they lose their mental faculties (“capacity, which is a medical term), unless there is good cause not to appoint that person, the Court would give deference to the individual's wishes. As part of the Incompetency Proceeding, the Court first assigns a guardian ad litem to talk with and assess the family situation, medical records and any other relevant documents that can help the court determine if the person is still “competent” (which is a legal term). If not, then the Court must assign a guardian. If the courts assign a guardian, then the guardian must complete a Wake County class, which Angela Lassiter teaches about the responsibilities of guardians.
How does one get guardianship?
- An attorney is contracted (The fees vary according to whether the competency and guardianship is contested or uncontested).
- A petition is filed with the court.
- The hearing is set approximately 30 days out to invite anyone who is in anyway related to the case to the hearing.
- The sheriff serves the respondent (elder) with the paperwork (so it’s important to have a geriatric care manager or the child there on hand, if this is unanticipated, as it can be a traumatic event).
The Hearing Officer hears the case. If no one wants to be guardian and/or no one in the family is an appropriate guardian, the court can assign a guardian. This could be someone--such as Leslee Sharp for the financial matters (Guardian of Estate) or someone at a care management company, like LifeLinks or NavigateNC for the medical issues (Guardian of Person), or both.
The individual serving as guardian of the estate is entitled by statute to a commission of up to five percent of the value of the estate, no higher. The fees must be approved by the Court. (That said, if the estate is only worth $1000 and the patient has another ten years of life expectancy, then that 5%, or $50 in this case, would be divided by ten and the guardian would receive only $5/year.
Are there any exceptions to the 30-day rule?
Rarely, but if circumstances deem it appropriate, the court can hold a hearing in as soon as 10 days. For example, if a person were placed in a facility and a physician deemed the person unable to make medical decisions and there is no health care power of attorney. Or if there is a concern of financial abuse that must immediately be stalled. In some cases, the doctor’s notes, testimony and other details can accelerate the process.
Any other considerations?
Even looking at the risk of an individual walking out of a facility where they are placed, there still must be a finding of incompetency by the Court. They might be making very unhealthy choices, but if they can understand the consequences of their actions, then they are likely to be considered “competent” at the hearing.
Sharp said a crucial part of her counsel is informing her clients on what the court process will look like before, during, and after the trial.
Leslee Sharp currently serves as guardian for many residents who do not have family members to responsibly fulfill this role. (Jennifer Knox is Wake County’s current Clerk of Court. Leslee Sharp is an independent attorney who accepts appointments from Ms. Knox as Guardian
of Estate).