Law Review: Part 1: Guardianship: A Remedy of Last Resort

by Margaret (Mia) Lorenz, Attorney

In a perfect world, we move through our lives without experiencing a guardianship proceeding and we can remain ignorant as to what “guardianship” technically means. But in order to achieve this perfect world, we have to do advance planning to provide for our care. If we become impaired or incapacitated, and we need trustworthy, responsible and financially astute persons to assist us; hopefully we have executed the appropriate legal documents for those persons to help us.  If we have not – or if we are incapacitated and uncooperative — then the chances are very high that you and your trusted person(s) (in an effort to help you), will have to spend time at the courthouse learning about “guardianship.”

This article is different than my past articles because it involves explanation of legal process and technical terms. The topic of guardianship is complex. Some of you may have heard of guardianship but do not know all of the intricacies that are explained in this article. I dig into this “nitty gritty” to make sure that guardianship is considered as a remedy of absolute, last resort. In my opinion, it is extreme and its consequences are severe. 

When does Guardianship come up?

Increasingly, I run into the following situations:

A Senior comes to me, often brought by their children when mental incapacity has set in, and although the Senior appears to have willing and able family members who can take care of them, assist with making personal care and living decisions, or manage their finances, the Senior does not have the necessary legal documents in place to empower these helpers as their agents. In other words, the Senior does not have the requisite legal capacity to execute powers of attorney. Loyal family members and friends are very concerned, but nobody has the power to assist the Senior once they learn what needs to be done; and it is too late for legal documents to be signed because requisite mental capacity is absent in the Senior.

Seniors have documents in place, but the people named are dead or no longer available, willing or appropriate to serve.

The people who the Senior trusted and anticipated would be appropriate have become exploitive and abusive to them – or – Seniors have been conned into paying for, or agreeing to pay for, fraudulent products and/or services. As discussed in last month’s issue, elder abuse in its many forms – including fraud by unscrupulous “vendors,” financial exploitation, and physical or emotional abuse by “friends” and relatives – is a huge problem in the United States.

Seniors may have excellent powers of attorney in place, but the Seniors are noncompliant about what they now need to do for their own safety and care. For example, they may need to live in an assisted living community or nursing home, but they voluntarily check themselves out of the facility and depart. They are free to make their own decisions, even though imprudent or unsafe, so they can walk right out and put themselves in danger. If they have access to an automobile, they put the general public at risk as well. Alternatively, they refuse to enter the facility in the first place even though it is unsafe to remain home alone.

Adult Protective Services
In emergencies, where the Seniors are unwilling to cooperate and their intransigence is putting themselves or others at risk, often a neighbor – or the hospital – or a friend – calls Adult Protective Services (APS). APS is a state agency within the department of social services of the state of North Carolina. APS generally will appoint a social worker or other staff person to investigate, perhaps with local police in order to gain access to the Senior and entry into the home. APS will initiate guardianship over a Senior if they believe guardianship is the only method of protecting the Senior. In some cases, APS and/or the court appointed Public Guardian actually becomes the guardian of the Senior – in such a case, the Senior is truly a ward of the state.

Seeking Court Protection
Whether or not Adult Protective Services gets involved, and whether or not the case is an emergency or just a situation where the Senior needs help and is not willing or able to sign a power of attorney – or if they have signed a power of attorney, but they are jeopardizing their physical or financial health and safety — the solution is often a guardianship over the Senior, if he or she meets the applicable standards of incapacity. 

How does Guardianship happen?
To be blunt, the Senior is sued.The person signing the “petition” (starting the lawsuit) alleges that the Senior is incompetent – incapable of handling his or her financial and personal affairs. The petition goes into detail about the deficiencies of the Senior.  Sadly, many times, the person signing the petition is a family member. This is a difficult position for a family member. Other times, it is APS who initiates and files the lawsuit. The petition is served on the Senior by a Sheriff Deputy. The Senior is automatically appointed an attorney guardian ad litem who visits with the Senior to determine what the Senior “wants” and to determine what is in the Senior’s best interest. The attorney guardian ad litem talks with all interested persons. The stage is set as an adversarial proceeding, and it next moves to a hearing phase at the courthouse.

Next month’s article will explore and explain the court hearing that necessarily occurs in order to achieve guardianship. All interested parties and next of kin are summoned to court to participate in the matter of whether or not the Senior is incompetent – and if so – who among all interested, should be guardian. 

Margaret (Mia) Lorenz is an attorney in Southern Pines at Lorenz and Creed Law Firm PLLC, where she helps people with many legal needs such as preparing their wills and/or trusts, helping when a loved one dies, and helping purchase or sell real estate. She has been assisting people with their legal needs for 26 years. In addition to her husband, John, to whom she has been married for 27 years, she has two children (Matthew and Nicole); three furry children (Brandy (basset beagle hound mix), Mickey and Minnie (cats); and is grandmother to two furry grandchildren (Clif the dog and Aurora, the cat).