Als Tylor Freeman 18 war, he recalls, a Buncombe County court decided he needed a legal guardian to help him with life decisions, which is exactly what a psychologist recommended after a 10-minute interview.
Freeman, 28, of Asheville, who has cerebral palsy, shared his story during an April 25 event in downtown Raleigh for professionals and advocates involved in proposalsreforms of the guardianship lawmoving through the General Assembly.
He said he was 18 and had just broken away from living with his mother.
"They didn't think I was making good decisions," Freeman said of the process of placing him under guardianship. "Then I come and I'm like, 'What do you mean? What should I do?'"
A bill containing proposed reforms on several aspects of adult guardianshippassed the state senate unanimouslyon April 20th and went to a House Committee on April 25th. Its passage would mark the first major changes in decades in this area of law, with language aimed at enhancing the rights of the person under guardianship and ensuring they are fully informed of the process, and enhancing oversight by the offices the county clerks.
Under legal guardianship in North Carolina, a person may have near-total control over their life—daily living and/or financial matters—that is delegated to another person, agency, or entity by order of a district court official. This occurs when the court finds that a person, referred to as a defendant, or in the outdated terminology, a “ward,” is incapable of making and communicating decisions about their welfare or money.
Indeed, the reforms are "... the essence of what the disability rights movement is about, which is choice and empowerment," said Linda Kendall Fields, a longtime developer of these reforms and future director ofUNC cares, oder das Center for Aging Research and Educational Services, am UNC Chapel Hill.
“It affects where you live, who you are with, what you do, how your money is spent. It really is at the core of personality.”
"It will not be repeated"
In fiscal year 2021-22, 5,786 people were under guardianship in North Carolina, according to a March reportpresentationto legislators. Laws governing the practice would be revised in part due to a campaign pursued by since 2015Rethinking guardianship, a nationwide effort funded byNorth Carolina Council on Developmental Disabilitiesand performed byUNC caresat the School of Social Work at UNC Chapel Hill.
"There are some provisions that would allow people to make choices about what they want to do," said Heather Burkhardt, executive director of theNorth Carolina Coalition on Agingwho supported the bill. “So it doesn't take away from them all the rights around those guardianships and it makes sure people have the option to come out of guardianship.
"What often happens is a lot of people have a guardian, and it's forever and it won't be revisited — ever."
That's almost what happened for Freeman, whose rights were restored on Jan. 24 after spending a decade in the system. TheARC von North Carolina, the agency that took its custodianship from a private provider, followed a practice that the proposed law would mandate. Its provisions would ensure that the defendant or person under guardianship is aware of a number of rights, some of which may only have appeared in judgments in previous cases, Fields said.
"I never thought I could have a jury trial," Freeman said. "I never knew I could appeal or that we would go to court. And nobody would tell me these things.”
A mandate for complete information
Restoring rights to those who can manage their own affairs can have significant benefits. A court placed Sean Brady, 36, under guardianship when he was diagnosed with symptoms of autism at the age of 27. As a result, he had to ask his stepmother as a guardian for permission to engage in activities such as business trips out of town.
In this 2019 photo, Linda Kendall Fields of the UNC-Chapel Hill Jordan Institute of Families and Sean Brady, then a student and staff member at Alamance Community College, discuss guardianship issues at a Rethinking Guardianship Summit. Staff photo: Thomas Goldsmith
With the help of Rethinking Guardianship, Brady was restored to his full adult rights. Using a document certifying his status in situations such as applying to college, he earned a two-year degree in Horticulture and Applied Plant Science.
"I think I'm the first person in my entire family to ever graduate from college," Brady said in a phone interview from his new home in West Virginia. "I'm thinking about possibly going back to West Virginia University to make it from an associate's degree to a bachelor's degree in business or something."
Anyone can apply to have another person disqualified from making and communicating decisions about their care and finances. With the proposed new requirements in the draft law, the petitioner must provide several specific pieces of information.
"In the past, if the clerk determined that the defendant needed guardianship, they had no choice but to assign a guardian," Fields said. "The petitioner must demonstrate that an attempt was made to first support that person's decisions by less restrictive means."
Carol Kelly, an Orange County and national advocate for guardianship, spoke at the Raleigh event about the importance of this part of the proposed reforms. Kelly became involved because of her mother's experience in California, who she felt was the victim of financial exploitation in needless tutelage.
"The purpose of this legislation is to require every pathway to be audited," Kelly said. "Do you have your authority? And could this person work with you? Or is there another kind of support so that you can keep your dignity, your personality? Taking that away could just be devastating.”
Avenues to the passage
Proponents of guardianship changes received a boost that can't be quantified from the story of pop star Britney Spears' harrowing struggle to escape her father's guardianship, Burkhardt said. Spears' example emerged in the legislative discussion.
The road to legislation that could survive passage in a contentious North Carolina legislature was also paved with the support and involvement of theNorth Carolina Bar Associationand theNorth Carolina Conference of Clerks of Superior Court, said the participants.
Fields said three main parts make up the bill, which will next be considered by the House of Representatives:
- A mandate to consider alternatives that impose the fewest restrictions on the lives of people facing potential guardianship.
- It must be ensured that all parties are fully informed of the relevant rights.
- The ability of the courts to monitor guardianship and convene hearings when necessary.
The Rethinking Guardianship organization plans to push for more reforms in future legislatures, Fields said. One will be revisions in what is considered archaicArticles of Incorporation, like "incompetent" instead of "incompetent" to describe a person who could benefit from guardianship.
Laws also use such outdated terms as "intoxication" and "decrepitude."
The terms appear not only in specific statutes governing guardianship, but also in other statutes that are referenced, so such a process would become complicated, Fields said. The legislature has made such a language reform in the past, as ina 2018 attempt at revising wordssuch as "insane" and "mentally retarded," but not all terms have been eliminated.
New processes are already spreading
Meanwhile, years of discussions about guardianship changes have been making waves that are being felt in county officials' offices across North Carolina, said Orange County Superior Court clerk Mark Kleinschmidt.
"I hope you understand that the talks and hearings are ongoing and the offices of state employees have already changed because of your work," Kleinschmidt told officials and supporters of the legislation at the April 25 event. “One of my colleagues from a neighboring county, who is very close to me, has rejected two applications for grants in the last six weeks.
"And she called me both times and said, 'Hey, Mark, I turned down a petition today.'
"And I was like, 'Oh, wow, how did you get there?'
"She said, 'Well, there was a lot of support for that person. And that person was not incompetent, and I dismissed the petition.'"
NC Health News Editor Rose Hoban contributed to this story.
TheArticleappeared firstHealth News from North Carolinaand is republished here under a Creative Commons license.
FAQs
What is guardianship incompetence in NC? ›
A guardian is appointed for an adult if the court finds by clear, cogent and convincing evidence that a person alleged to be incompetent lacks sufficient capacity to manage his or her own affairs or to make or communicate important decisions about the person's self, family, or property.
Does guardianship override power of attorney in NC? ›Even if a guardian is appointed, the Health Care Power of Attorney still takes precedence in granting the authority to act as an individual's health care agent. Only an Order of the Clerk of Court can suspend the Health Care Power of Attorney in favor of the guardian. N.C. Gen.
How long does temporary guardianship last in North Carolina? ›5) How long does guardianship last? The individual under guardianship remains under guardianship until their competency is restored through court proceedings, or until they die.
Who is next of kin guardianship NC? ›Typically, a person's next of kin will include the spouse, parents, children, and siblings. The next of kin must be listed in the petition and you must file a notarized Affidavit of Service that a copy of the Notice of Hearing and petition were mailed to each by first-class mail to the address(es) listed.
How to get guardianship of a child without going to court in NC? ›A child's parents may consent to guardianship by signing paperwork stating that they agree to have another person appointed as a guardian for their child. A parent may agree to guardianship in advance by naming a person they want to care for their child if something happens to them in estate planning paperwork.
How do I terminate my guardianship in NC? ›The ward or the guardian can petition the court to terminate the guardianship. The petitioner must provide evidence to the court that: The guardian is no longer needed or wanted. Termination of guardianship would be in the ward's best interests.
Does guardianship override parental rights in North Carolina? ›In most cases, guardianship does not override parental rights in North Carolina. Usually, even if someone has receives guardianship of a child, the parents will still have the right to make decisions about their care and wellbeing.
What powers does guardianship have in NC? ›- Take custody of the ward's person.
- Make provisions for the ward's care, comfort, and maintenance.
- Take any responsible action necessary to protect the ward from further mistreatment in instances where the guardian learns the ward is being mistreated.
A power of attorney and a guardianship are tools that help someone act in your stead if you become incapacitated. With a power of attorney, you choose who you want to act for you. In a guardianship proceeding, the court chooses who will act as guardian.
What is the difference between custody and guardianship in NC? ›The key difference between being a legal guardian and having legal custody is in regard to the child's parentage. Custody describes a biological parent caring for a child, but guardianship is given to someone other than a biological parent.
How much is a guardianship bond in NC? ›
The bond amount, determined by the clerk of superior court, shall be no less than one and one quarter (1.25) times the personal property value. However, if the value exceeds $100,000, the clerk may elect for the bond to be in an amount equal to one hundred and ten percent (110%) of the value.
How hard is it to terminate guardianship in NC? ›A guardianship can provide necessary care for an individual. However, it can also be oppressive when no longer needed. Termination of guardianship can be just as difficult as establishing one. It requires court hearings and involvement by legal professionals who will be fighting for competing sides.
Do guardians get paid in NC? ›A guardian may be reimbursed from the ward's estate for reasonable expenses incurred in carrying out his duties as guardian. A guardian of the estate or general guardian may also receive a commission set by the clerk from the ward's estate for serving as guardian.
At what age can a child refuse visitation in North Carolina? ›In North Carolina, there is no age for this. Instead, parents can try to come to an agreement based on the best interests of the child, but family court may be needed if that fails.
What is a child entitled to when a parent dies without a will in NC? ›If you have one child: This child will receive half of the remaining personal property and half of all intestate real estate. If you have two or more children: With multiple children, this distribution changes slightly.
Who are heirs at law in North Carolina? ›Under North Carolina's intestate succession laws, the first heirs at law to inherit from the deceased are the surviving spouse and children of the deceased. If there is no surviving spouse or child, then the next heirs at law are the deceased's parents.
What is kinship legal guardianship in NC? ›To support guardianship, North Carolina offers the Kinship Guardianship Assistance Program (KinGAP). This program offers financial assistance and Medicaid for youth who are placed with licensed kin or foster parents who are committed to being a permanent home for the youth.
Do guardian ad Litems get paid in NC? ›(a) An attorney or guardian ad litem appointed pursuant to G.S. 7B-601 shall be paid a reasonable fee fixed by the court or by direct engagement for specialized guardian ad litem services through the Administrative Office of the Courts.
How do I get full custody in NC? ›Non-relatives requesting custody must prove that they have a substantial relationship with the child. How do I file for custody? To ask a court for a child custody order, you must file a complaint. Your lawyer can file the complaint for you, or if you do not have a lawyer, you can file a complaint yourself.
Is a step parent a legal guardian in NC? ›A court does not grant legal guardianship to a stepparent unless one or both of the biological parents have been deemed unable or unwilling to care for their child.
How do I get rid of the guardian? ›
You can delete your Guardian online account by signing into your account settings and selecting delete account.
How do I become a child advocate in NC? ›...
Volunteer as a GAL
- Criminal background check.
- Screening interview.
- 30 hours of intensive, standardized training.
- Create the POA Using a Statutory Form, Software, or Attorney. ...
- Sign the POA in the Presence of a Notary Public. ...
- Store the Original POA in a Safe Place. ...
- Give a Copy to Your Agent or Attorney-in-Fact. ...
- File a Copy With the Land Records Office.
A power of attorney must be (i) signed by the principal or in the principal's conscious presence by another individual directed by the principal to sign the principal's name on the power of attorney and (ii) acknowledged.
What is a power of attorney for a minor child in NC? ›A power of attorney for care of minor child is often used for a child's medical needs. The attorney-in-fact is generally permitted to choose a doctor, dentist, and any other necessary healthcare provider on behalf of the parent. They can also authorize immunizations, surgical procedures, or other specialized care.
How long does a father have to be absent to lose his rights in MS? ›Abandonment
The timeline to be considered abandonment is based on the child's age. A child under the age of three is considered abandoned by their parents if contact has not been made for at least six months. For children over the age of three, it is considered abandonment after a year.
A guardian of the estate or general guardian may not sell more than $5,000 of the ward's personal property in any one accounting period without petitioning the court in advance and obtaining a court order approving the sale. See 'Property, Investments and Verifications. '
Does guardianship override power of attorney in PA? ›A guardianship could override a power of attorney if the document was not created before a person became incapacitated. The purpose of a guardianship is to appoint an individual to care for a person who cannot care for themselves.
Does guardianship override power of attorney in Texas? ›Your general durable power of attorney ends if the court names a guardian of your estate. Your general durable power of attorney may be suspended if the court designates a temporary guardian.
What is the difference between guardianship and power of attorney in Missouri? ›A guardianship/conservatorship is the Court finding that the person can no longer make their own decisions and they need someone to oversee them- much like a minor child needs their parent(s) to make decisions for them. A guardian has more power than a power of attorney, but also a higher level of responsibility.
Who pays the guardian bond? ›
The premium that a principal will pay for a guardianship bond is a percentage of the required bond coverage amount. Typically, this will be 0.5 to 1 percent of the bond amount. However, many factors can affect the premium that a principal pays for a guardianship bond.
What percent of bond do you pay in NC? ›Determining Bail
The standard bail fee is about 15 percent of the bail amount. You'll pay either using cash, secured bail bonds, or unsecured bail bonds. You can also get an “Own Recognizance” release.
Bond amounts are usually set by a magistrate.
Does guardianship override parental rights in Missouri? ›If you are appointed the responsibility for the child, their parents no longer have the right to make decisions for the minor, although they may still visit and be in contact. Whenever possible, the minor's parents will be asked to consent to the change in guardianship.
Can permanent guardianship be terminated in Florida? ›Essentially, if a court determines that a guardian's removal is in the ward's best interests, the court may remove the guardian. The guardian must then file a final accounting with the court and return all property and records to the next guardian who is appointed.
What does permanent guardianship mean in WV? ›a Permanency Option. Legal guardianship is a judicially created relationship between a child and responsible adult in which the guardian assumes many of the rights and responsibilities that customarily would reside with the child's parents.
What is guardian payment? ›Guardian's Payment (Non-Contributory) is a non-contributory payment for a child who is not entitled to the contributory payment. The means test for this is based on the child's means. Payment is made to the child's guardian until the child turns 18 or, if the child is in full-time education, until they turn 22.
Can guardians get the child tax credit? ›You qualify for the full amount of the 2022 Child Tax Credit for each qualifying child if you meet all eligibility factors and your annual income is not more than $200,000 ($400,000 if filing a joint return). Parents and guardians with higher incomes may be eligible to claim a partial credit.
What is a guardians yearly salary? ›| Active Players (26) | Age | Payroll Salary |
|---|---|---|
| Jose Ramirez | 30 | $14,000,000 |
| Shane Bieber | 28 | $10,010,000 |
| Amed Rosario | 27 | $7,800,000 |
| Mike Zunino | 32 | $6,000,000 |
There is no magic age under North Carolina law when a child can unilaterally stop visitation pursuant to a valid court order. Just as a child can't choose who they want to live with they can't choose whether they have to abide by a visitation schedule with a parent they don't want to see.
What rights do grandparents have in NC? ›
While North Carolina does not formally recognize grandparent rights, the courts do allow grandparents to pursue custody if their grandchild's family situation warrants it. Grandparents have some options, but you need to work with an experienced North Carolina child custody attorney.
At what age can a child legally leave home in North Carolina? ›Any juvenile who is 16 years of age or older and who has resided in the same county in North Carolina or on federal territory within the boundaries of North Carolina for six months next preceding the filing of the petition may petition the court in that county for a judicial decree of emancipation.
Is a handwritten will legal in NC? ›North Carolina recognizes the validity of handwritten wills. Under NC law, a handwritten will must satisfy the following requirements: Written entirely in the handwriting of the testator (the will-maker);
What assets are exempt from probate in NC? ›- Property in a revocable trust,
- Real estate owned as joint tenants with a right of survivorship or tenancy by the entirety,
- Life insurance policies and retirement accounts with a designated beneficiary,
- Bank accounts with payable on death (POD) or transfer on death (TOD) clause.
NCGS 30-15 provides that a surviving spouse shall be entitled to an allowance of the value of $60,000 from the personal property of the deceased spouse to support the surviving spouse. The surviving spouse must apply for this allowance through the Clerk of Court within one year of the deceased spouse's death.
What is the order of inheritance in NC? ›North Carolina's Intestate Succession Laws
If the decedent had two children, the surviving spouse will only receive a one-third interest in the real property. If you die without a surviving spouse, your assets will generally pass to your children. If you have no children, your parents will receive the estate.
Do All Estates Have to Go Through Probate in North Carolina? Smaller estates with probate-qualified assets valued at less than $20,000 can avoid the formal probate proceeding. If the surviving spouse inherits the whole estate, however, the estate's value can't exceed $30,000 if probate is to be avoided.
How do you avoid probate in North Carolina? ›In North Carolina, you can make a living trust to avoid probate for virtually any asset you own—real estate, bank accounts, vehicles, and so on. You need to create a trust document (it's similar to a will), naming someone to take over as trustee after your death (called a successor trustee).
How long does guardianship last in NC? ›5) How long does guardianship last? The individual under guardianship remains under guardianship until their competency is restored through court proceedings, or until they die.
How much do guardians get paid in North Carolina? ›| Annual Salary | Monthly Pay | |
|---|---|---|
| Top Earners | $79,258 | $6,604 |
| 75th Percentile | $54,514 | $4,542 |
| Average | $46,254 | $3,854 |
| 25th Percentile | $29,770 | $2,480 |
What does guardian ad litem mean in NC? ›
Equips community volunteers to serve abused and neglected children by advocating for their best interests in court. The North Carolina Guardian ad Litem (GAL) program equips community volunteers to serve abused and neglected children by advocating for their best interests in court.
What age can a child decide which parent to live with in NC? ›Divorce brings about the need to make many decisions, and none is more important than the issue of child custody. Many people believe there is a “magic age” when children can choose the parent with whom they prefer to live — or have the right to make that choice. In North Carolina, there is no age for this.
What is the most common custody arrangement in NC? ›The type of custody agreement that requires the greatest level of cooperation between a child's parents is joint custody. Therefore, the most common custody arrangement a judge orders is primary custody for one parent, with visitation for the other (secondary parent).
Who gets primary custody in NC? ›In order to get sole custody in North Carolina, a parent must file a petition with the court and show that it is in the best interest of the child. The court will consider which parent has been the primary caretaker, whether both parents can provide a stable home environment, and any history of abuse or neglect.
What legal rights does a step parent have in North Carolina? ›Stepparents have no rights unless they can overcome the constitutionally protected right to parent one's child. For most LGBTQ couples, partners may be placed in a role as a parent and if so, then they can gain rights to become a parent.
What is the difference between step parent and guardian? ›A legal guardianship differs from stepparent adoption in that it does not sever the legal ties between children and their biological parents. If a stepparent is appointed a legal guardian of their stepchild, biological parents still retain all legal and financial responsibilities for their children.
How does guardianship work in NC? ›A guardian is appointed for an adult if the court finds by clear, cogent and convincing evidence that a person alleged to be incompetent lacks sufficient capacity to manage his or her own affairs or to make or communicate important decisions about the person's self, family, or property.
How much do family advocates get paid in North Carolina? ›How much does a Child Advocate make in North Carolina? As of Apr 22, 2023, the average annual pay for a Child Advocate in North Carolina is $26,346 a year. Just in case you need a simple salary calculator, that works out to be approximately $12.67 an hour. This is the equivalent of $506/week or $2,195/month.
What rights does a power of attorney have in NC? ›Rights as Power of Attorney in North Carolina
Financially, you can authorize an agent to sign paychecks, withdraw money, file tax returns, buy and sell property such as real estate or automobiles, purchase insurance, manage benefits, make decisions about stocks, and hire professionals for assistance.
Adjudicated incompetence means inability or unfitness to manage one's affairs because of mental condition determined in a court proceeding. Sample 1Sample 2Sample 3.
What does defendant incompetent mean? ›
“A defendant is incompetent to proceed within the meaning of this chapter if the defendant does not have sufficient present ability to consult with her or his lawyer with a reasonable degree of rational understanding or if the defendant has no rational, as well as factual, understanding of the proceedings against her ...
What is the definition of incapacitated in NC? ›he or she lacks sufficient capacity to manage his or her own affairs or property or to • make or communicate important decisions concerning his or her person, family, or property. In addition, the two components or elements of North Carolina's definition of incapacity are causally related.
What are examples of incompetence? ›Being tactless, bossy, impolite, unclear, agitated, or not instilling confidence in the people you work with are all examples of incompetence at work owing to a lack of people skills. Managerial incompetence is demonstrated when you fire a key employee because you only point out his flaws and never compliment him.
What constitutes incompetence? ›Definition. 1. Lack of legal ability to do something, especially to testify or stand trial. Also known as "incompetency." May be caused by various types of disqualification, inability, or unfitness.
What is the difference between incompetence and incompetent? ›incompetence: (noun) lack of physical or intellectual ability or qualifications. (noun) inability of a part or organ to function properly. incompetents: (noun) someone who is not competent to take effective action.
What is permanent guardianship in NC? ›Permanent guardianship creates a more stable, long-term environment by giving the guardian the same authority as a parent. However, the legal relationship expires when the child becomes an adult. A temporary guardianship can sometimes change to a permanent guardianship.
What is the most likely reason a person will be found incompetent to stand trial? ›People found incompetent to stand trial (IST) range from those who commit minor, nonviolent offenses such as loitering or trespassing to individuals who commit serious crimes such as assault and murder.
What is legal action incompetence? ›In the case of incompetence, a person did not have the necessary qualifications to perform the act that caused someone's accident or injuries.
Why it is difficult for defendants to prove that their attorney was incompetent? ›Proving legal malpractice in a criminal matter can be difficult, because courts tend to defer to attorneys. Thus, they presume that the accused attorney provided “reasonable professional assistance” to the former client. Still, the Sixth Amendment right to an attorney is a vital part of the Bill of Rights.
When a court declares a patient incompetent? ›To be declared incompetent, a person must show the lack of capacity to make sound decisions - not simply because they've made irresponsible or foolish decisions.
What is considered mentally incapacitated? ›
Mental Incapacity: What is it? The legal definition of incapacity is the inability to carry on the everyday affairs of life or to care for one's person or property with reasonable discretion due to a mental illness or significant cognitive impairment.
Is a person with dementia considered incompetent? ›In reality, when someone is diagnosed with Alzheimer's disease or dementia, they are not immediately considered incapacitated or of unsound mind. A legal determination of whether someone is incapacitated needs to be made by a court. There is no presumption or immediate trigger based solely on a medical diagnosis.