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Guardianship vs Power of Attorney

Posted by Inez de Ondarza Simmons | Feb 18, 2018 | 0 Comments

Both Guardianships and Powers of Attorney provide authority to make legal and/or personal decisions over another person.  The difference is that Guardianship in North Carolina is obtained by a court process whereas a Power of Attorney is created by individuals.

Health Care Power of Attorney and Financial Power of Attorney

A power of attorney (“POA”) gives the authority to make legal and/or personal decisions on behalf of another person in the event that person is no longer able to make decisions due to incapacity or severe illness   Everyone should have a POA in place in the event of incapacity due to illness or an accident to avoid family members having to apply for guardianship through a court process.  Most importantly, with a POA, the individual, not the court, has the ability to determine who they want to make decision on their behalf.  If no POA exists when a person becomes unable to make decisions sucha as medical procedures or accessing funds from a bank account, a petition to establish guardianship has to be filed with the court.

Not making it clear as to who should take care of minor children when both parents die or become incapacitated can lead to devastating consequences for your children. Although a court proceeding is not avoidable in that situation, the children can be placed with teh guardians as they begin the legal process. Most importantly, the courts will comply with the parents wishes and appoint the recommended guardian(s) unless there are findings contrary to the best interest of the children.

Guardianship

In order to have guardianship over a person in North Carolina, a petition has to be filed with the Clerk of Court in that person's county of residence.  All immediate family members need to be served with a notice of the hearing on the adjudication of incompetence. A guardian ad litem attorney (“GAL”) will be appointed by the Clerk of Court to represent the person needing a guardian (“respondent”).   The GAL's job is provide to the court recommendation as to 1) whether or not the respondent needs a guardian and if yes, 2) who the court appoint to serve as the guardian.  There are two types of guardians in North Carolina, a guardian of the person (GOP) and a guardian of the estate (GOE).  The GOP makes decisions regarding a person's private affairs like medical decisions or decisions about where a person should live.  The GOE makes  decisions over legal and financial affairs and is required when the person owns assets worth over $2,000.

Although a court process for guardianship is still required even if the guardian(s) have been designated in the Estate plan, without contrary evidence that their appointment is in the best interest of the minor or incompetent child, the court will honor those wishes.

NC Gen. Stat. 35A-1212.1

If both parents make such recommendations, the will with the latest date shall, in the absence of other relevant factors, prevail. Such recommendation shall be a strong guide for the clerk in appointing a guardian, but the clerk is not bound by the recommendation if the clerk finds that a different appointment is in the incompetent adult's best interest.

About the Author

Inez de Ondarza Simmons

Exceptional Legal Services since 2005 Inez de Ondarza Simmons founded de Ondarza Simmons, PLLC, which handles civil litigation cases in Raleigh and throughout North Carolina in State and Federal courts, including Business and Real Estate Litigation Estate Planning Eminent Domain and Loca...

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