Power of Attorneys:  Health Care Power of Attorney and Financial Power of Attorney vs. Guardianship

Simply stated, a power of attorney gives the authority to act for another person in specified or all legal or financial matters or private affairs.  It can be prepared well in advance of a situation to ensure that your wishes regarding your personal and medical care or your assets are followed.   An accident or sudden illness can cause even temporary incapacity that requires someone to make decision regarding medical care or financial decisions.  If no Power of Attorney exists for you or a loved one, then unfortunately, a court will have the power to make that decision for you or your loved one.   In North Carolina, a petition for “adjudication of incompetence” has to be filed with the Clerk of Court in Special Proceedings.  In Wake County, Special Proceedings is located on the 12th floor of the Civil Courthouse (the “old” courthouse) located at 316 Fayetteville Street in Raleigh. All immediate family members have to receive notice of the proceeding and can apply to become a guardian.

In North Carolina there are two types of Guardians, a Guardian over the Estate (“GOE”), who will have decision making power over property and financial assets and a Guardian of the Person (“GOP”), who has the power to manage personal affairs.  The GOP generally makes decisions regarding a person's medical or mental health needs and decisions about where a person should live.  The GOE is necessary when the person owns assets worth over $2,000.  The GOE also has the power to sell any assets that may be necessary for the best interest of the person. Note, minors in North Carolina are automatically deemed “incompetent” and if parents have not made any provisions as to who should be their legal guardian if both parents are deceased, the court will also make that decision.