Guardianship is the only way, outside of a power of attorney, to have legal authority to make decisions on behalf of a minor or incompetent person.
Guardianship is a legal process that involves filing a petition with the Clerk of Superior Court, requesting that person be declared incompetent, and the conduct of a hearing wherein a determination of a person’s competency is made and someone is appointed guardian.
The process involves service by the sheriff upon the person whose competency is being challenged, the appointment of a guardian ad litem, and noticing of all interested family members.
In certain instances, it can require the completion of a mental examination of the person whose competency is in question – an expensive and time-consuming process.
There are also three different kinds of guardianship: Guardian of the Person, Guardian of the Estate, and General Guardian. General Guardian is the term for one person who serves as both Guardian of the Person and Guardian of the Estate.
Guardian of the Person: Makes decisions related to the health and well-being of an incompetent adult. Most often involves decisions related to nursing or rest home placement and medical care. If an incompetent adult has no assets, and any income is already paid to a representative payee, it may only be necessary to appoint a Guardian of the Person.
Guardian of the Estate: Makes decisions related to the assets of an incompetent adult. Most often involves ensuring that bills and obligations continue to be paid following adjudication of incompetence, as well as ensuring that assets of an incompetent adult are preserved for future needs. Responsible for all income, personal property, and real property. A Guardian of the Estate must be bonded by an insurance company before appointment by the Court.