What happens if you don't have a Power of Attorney?

Power of attorney documents are executed when the person has capacity to legally designate someone as their decision maker.  However, some people wait too long and don’t have anyone when the time comes that they are unable to do so.  If this happens, loved ones or retirement facilities, or caretakers will have to file a guardianship proceeding to ensure that someone is legally able to make decisions on the incompetent person’s behalf. 

I have had the opportunity to do many guardianship cases.  A lot of them turn out great and mom or dad walk away with their child taking care of them for as long as they are still alive.  However, sometimes things don’t always turn out the way we expected and guardianship proceedings can go very badly.

I distinctly remember one case.  Dad died and mom was left living alone.  She didn’t have a power of attorney or anyone to make decisions on her behalf, but luckily for her, she had six children who all loved her dearly.  Mom was a professor for thirty years, brilliant lady, with a lovely home and many other assets.  She hadn’t planned for the future because she felt like her six children would band together and help her.  She eventually lost her faculties and needed assistance making financial decisions and important decisions regarding her healthcare.  When this happened, since she didn’t have a designated power of attorney, her children initiated a guardianship proceeding.  The children began fighting over mom’s care and wanted control of her money and decision making power about whether or not she would have to move to an assisted living facility.  Because the Court saw the discord and the arguments among these six siblings, the Court decided it was not in mom’s best interest for any of her children to be the guardian and the Court appointed a public guardian.  A public guardian is usually someone with the county’s health and human services program who serves as guardian when there is no one appropriate to serve. 

Now, keep in mind, mom has six children who love her, who knows her wants and needs, and who know what would make her happiest.  The public guardian, although possibly very good at their job, has no history with this woman.  Because the children were angry with each other at this point, the public guardian decided it was best that mom not see the children at all because they felt it was stressful for her to be in the midst of their discord.  Mom lived the rest of her life with supervised visits with her kids and very limited time with them. 

My point is not to scare you, but to make you aware that if you don’t have a plan, and you don’t designate someone to act as your decision maker, the county can step in as that person who makes the most important decisions of your life.

  

If you are interested in planning for your care and want a power of attorney, please contact an estate planning attorney.   

My Minor Grandchildren Reside with Me…is Legal Guardianship Appropriate?

This question comes up frequently in the context of school-aged children who may live with a grandparent or aunt, uncle, or someone other than their natural parents. Schools will often send grandparents, etc. to the courthouse to file for guardianship so there is some proof on record as to who has decision-making authority over the child’s well-being. Unfortunately, this often results in a wasted trip and confusion.

In North Carolina, a “guardian” is someone who is appointed by the Clerk of Superior Court to make decisions for an incompetent adult. Once the court has determined someone incompetent, the court refers to this person as “the ward.” There are three different types of guardians for incompetent adults.

A Guardian of the Person makes decisions about the ward’s personal welfare, such as their living arrangements and medical plans and decisions.

A Guardian of the Estate can make decisions about the ward’s finances, such as paying bills, investing monies, etc.

A General Guardian is a combination of both the Guardian of the Person and the Guardian of the Estate, and has authority over both the ward’s personal and financial decisions.

North Carolina guardianship procedures do not provide for the needs of minor children, except in very limited circumstances. A minor cannot be appointed a Guardian of the Person or a General Guardian, unless 1) both natural parents are deceased, or 2) the court has terminated the parent’s parental rights. However, the Clerk of Superior Court may appoint a Guardian of the Estate for a minor child in cases where the child requires a guardian to manage an inheritance or life insurance proceeds from a deceased family member.

North Carolina guardianship practices are primarily geared towards adults, with a few exceptions. The law, however, does address the needs of minors through the custody procedure when minor grandchildren reside with a grandparent, and at least one natural parent is still living.