What is Guardianship?

Guardianship seeks to preserve and protect the legal rights and freedom of adults. Guardianship also seeks to protect individuals who lack sufficient mental capacity to make or communicate decisions.

To apply for guardianship, a petitioner files a petition with the Clerk of Superior Court. Upon the filing of a petition, an attorney must be appointed to represent the person who may need a guardian. That person is the Respondent.

It can take a few weeks before the case is heard in Court but an interim guardian may be appointed if there is an imminent or foreseeable risk of harm.

After a court hearing the Court decides whether the Respondent lacks sufficient capacity to manage his or her own affairs or to make or communicate important decisions concerning his or her person, family, or property.

Any person, including any state or local human services agency, can file a petition alleging thata respondent is incapacitated and needs a guardian.

There are three types of guardianships; Guardian of the Estate; Guardian of the Person; and General Guardian.

WHAT IS GUARDIANSHIP?

Guardianship is a legal relationship under which a person or agency is appointed by a court to make decisions and act on behalf of a minor or an incapacitated adult. North Carolina General Statute 35A.

WHY APPLY FOR GUARDIANSHIP?

Balance. Preserve and protect. Duty of the State to the legal rights, freedom, protect individuals who lack and personal autonomy of sufficient mental capacity adults.

HOW TO APPLY FOR GUARDIANSHIP?

To apply for guardianship, a petitioner files a petition with the Clerk of Superior Court. Upon the filing of a petition, an attorney must be appointed to represent the respondent. An interim guardian may be appointed if there is an imminent or foreseeable risk of harm to the respondent's physical well-being that requires immediate intervention or that there is an imminent or foreseeable risk of harm to the respondent's estate that requires immediate intervention in order to protect the respondent's interest.

WHERE TO APPLY FOR GUARDIANSHIP?

To begin a guardianship case, file a petition with Clerk of Superior Court in the county where the respondent lives.

WHEN WILL THE COURT APPOINT A GUARDIAN?

After a hearing the Court decides whether the respondent lacks sufficient capacity to manage his or her own affairs or to make or communicate important decisions concerning his or her person, family, or property.

Functional or cognitive element.  Inability to manage his or her affairs or to make or communicate important decisions regarding his or her person, family, or property.

Medical component.  Mental or physical condition that is the cause of the individual's to make or communicate important decisions or manage his or her affairs.

Relationship between the components or elements. Both components or elements of the definition are necessary in determining the issue of a respondent's incapacity, but neither is sufficient standing alone.

WHO CAN APPLY FOR GUARDIANSHIP?

Any person, including any state or local human services agency, can file a petition alleging that a respondent is incapacitated and needs a guardian. There are three types of guardianships; Guardian of the Estate; Guardian of the Person; and General Guardian.

Medicaid/Medicare

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The Medicare program became law in 1966. Under Title XVIII of the Social Security Act, Medicare provides health insurance for persons over the age of 65, persons who are under 65 and disabled, persons with ALS-Lou Gehrig’s Disease and persons with End State Renal Disease (ESRD).

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