Guardianship Law

Guardianship law is a part of estate planning and elder care such that an individual may need a guardian to help them care for themselves and make important decisions.

When a person becomes unable to care for him or herself, a guardian can be appointed to make decisions regarding their best interests. This is considered a guardianship. While this process usually deals with elderly, it can also pertain to children, in some cases. Guardianships were designed to protect people. This protection might be needed for various reasons including age, mental ability or other incapacities, when individuals are unable to make their own decisions.

In the case of the elderly, a person might develop dementia, Alzheimer’s or another disease that has caused them to have limited mental capacity. It can be a sad situation to deal with for the children or family of the elderly person but it is important to ensure protection is in place during this time.
Guardianship also plays two big roles within estate planning. The first role is establishing Powers of Attorney. The second deals with protecting children, grandchildren, and any other potential minor (non-adult) beneficiaries.
By creating Durable Powers of Attorney (financial) and Health Care Powers of Attorney, in the event that the grantor becomes incompetent, his Power of Attorney will be able to make important decisions in the grantor’s stead.
The second application is with a grantor’s children, grandchildren, or minor beneficiaries. If a child’s parents die, the issue arises as to whom takes responsibility for the child. While the court does have final say on this, as the court always wants what’s in the child’s best interest, there is a law that states the court shall give considerable deference to a parent’s guardianship nomination in that parent’s Last Will.
Many times, guardianship is considered a form of child custody. However, the two are quite different. Guardianship (for minors) typically involves a scenario where there is no living parent. Child custody involves a court battle between living parents or family members that are fighting to gain custody of a child due to an estranged relationship.
In another situation regarding, families can protect their incompetent adult relative by establishing a guardianship. In this case, the incompetent adult can no longer care for themselves. If you need assistance with this situation, please consider contacting our guardianship lawyer in Raleigh NC for help.
When creating an estate plan, we can factor in what may happen, as aging occurs. Planning to have someone specific take care of us, our spouse or children in the event of an untimely death or incapacitation is key. This can ensure protection so that wishes are carried out even when we are no longer able to express ourselves.

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