Guardianships

Guardianship is a court process used when a person is unable to make or communicate important decisions for themselves or manage their own affairs. Depending on the person’s needs, the court may appoint a Guardian of the Person to make personal and health care decisions, a Guardian of the Estate to manage finances and property, or a General Guardian to handle both.

Guardianship can significantly affect a person’s legal rights, so the court must consider whether less restrictive alternatives are available.

Needing help does not necessarily mean someone needs a guardian. The question is whether the person is able to make and communicate important decisions about their personal affairs, finances, or safety—and whether their needs can be addressed in a less restrictive way.

Before filing a guardianship proceeding, we look at the whole situation, including existing powers of attorney, available family support, the person’s abilities and limitations, and other alternatives. We recommend guardianship when it is necessary, not simply because it is available.

A guardianship case begins when someone files a petition asking the Clerk of Superior Court to determine that another person is incompetent. The person who is the subject of the proceeding has the right to receive notice, be represented by an attorney or guardian ad litem, present evidence, and participate in the hearing.

If the Clerk determines that guardianship is necessary, the Clerk decides what type of guardianship is appropriate, who should serve as guardian, and what powers the guardian should have.

In some situations, the court can appoint an interim guardian when there is an immediate need to protect a person or their property while the guardianship case is pending. Emergency guardianship is not appropriate simply because a family disagrees about someone's decisions; there must be circumstances that justify immediate court intervention.

If you believe someone is in immediate danger or their property is at serious risk, contact us promptly so we can help determine whether an interim guardianship is appropriate.

A family member or other qualified individual may serve as guardian, and in some cases a corporation or disinterested public agent may be appointed. The court's primary concern is selecting someone who can act responsibly and in the best interests of the person who needs assistance.

Family relationships can make this decision complicated, particularly when relatives disagree about who should serve. We can help you understand the options and what the court will consider.

A guardian's responsibilities depend on the type of guardianship and the authority granted by the court. A Guardian of the Person may make decisions about matters such as health care, housing, and personal needs, while a Guardian of the Estate is responsible for managing money and property, keeping detailed records, and filing required accountings with the Clerk of Superior Court.

Guardians are fiduciaries and must exercise their authority for the benefit of the person under guardianship—not for themselves or other family members.

Yes. The person who is the subject of the proceeding can contest whether a guardian is needed, and family members or other interested people may disagree about the person's capacity, who should serve as guardian, or how much authority a guardian should have.

We represent clients in both uncontested and contested guardianship proceedings and can help navigate the legal issues as well as the family dynamics that often accompany them.