Guardianship & Fiduciary Law
Guardianship and Fiduciary Law deals with situations where an individual needs (whether they realize it or not) another individual to assist them with the management of their affairs. How this management manifests itself depends on the specific facts of a situation. Very often these areas of the law overlap with Estate Planning and Elder Care Law. As a standard practice at Morphis Law & Mediation any time we draft a will for a client we also offer to draft a durable power of attorney, health care power of attorney and living will for the client. There is no additional cost for these documents (unless specific customization of them is required). There is also, however, no less charge if we do not draft them. The hope in creating these planning tools is that if a client’s situation becomes such that the client cannot manage their own affairs then there will be a safety net in place where others will be able to assist the client.
An individual who is named to help another in a durable power of attorney is called an attorney in fact. An individual who is named to help another in a healthcare power of attorney is called a healthcare agent. Both of these are considered to be fiduciary roles where the attorney in fact and the healthcare agent are expected to act solely for the best interest of the person they are assisting. As a simple example, if a child is named as attorney in fact for a parent then the child cannot say that they will not use the parent’s money to pay for the parent’s healthcare solely because doing so would reduce the child’s inheritance. Instead the child has a fiduciary duty to pay for the level of healthcare that is in the best interest of the parent.
The durable power of attorney and healthcare power of attorney are some of the first line tools Morphis Law & Mediation tries to use to assist clients with Elder Care Law needs. If these tools do not work the a guardianship (some states use the word conservatorship) may have to be sought for an individual. Examples of times were a durable power of attorney and a healthcare power of attorney many not be available as tools include situations where a person in unable to understand the nature of the power they are conferring on another individual or situations where a person has advancing dementia, is attempting to send money out of the country to this nice young man who keeps calling about just needing a few dollars to reclaim his kingship, and the person thinks actually sending funds will allow the kingship to be reclaimed. Most people think of an older person with some form of dementia as being someone who cannot understand the power they are conferring on another individual, but this situation may also apply to individuals with special needs or to individuals who are in an accident that leaves them in a coma.
In North Carolina a guardian is not appointed for an individual unless the individual is judicially declared to be incompetent. There is a presumption in North Carolina that a person is considered to be competent (no matter how bad their decisions may appear – such as someone who is addicted to illegal drugs) until they are declared to be incompetent. Hearings on incompetency in North Carolina are heard before the Clerk of Court for the county where the potentially incompetent individual resides. An individual who is appointed to manage the healthcare decisions for an incompetent individual is called a guardian of the person. An individual who is appointed to manage the financial decisions for an incompetent individual is called a guardian of the estate. If the same person is appointed to manage both healthcare and financial decisions for an incompetent person then they are a general guardian.
Traditionally a person who was adjudicated incompetent lost all say in the management of their affairs unless the appointed guardian chose to consult with the individual. North Carolina General Statute 35A-1112(d), however, allows a Clerk of Court to determine the nature and extent of an individual’s incompetence. When a Clerk of Court makes such findings then the individual is considered to be under a limited guardianship. Whether an individual who needs assistance should be under a limited or full guardianship is an matter that must be determined by the Court. The decision whether to seek to have a family member or loved one declared incompetent is one that is is always filled with emotion and there are a lot of factors that should be considered before taking an action that could potentially sever family or personal bonds.
At Morphis Law & Mediation we have a lot of experience helping people in these difficult situations. We work with families and friends who are concerned about vulnerable seniors or children in need and who are willing to accept the responsibility which comes with being able to make important decisions about the healthcare or finances of another.
The attorneys at Morphis Law & Mediation often serve as guardian ad litem for individuals against whom a petition for adjudication of incompetence has been filed. A guardian ad litem is an attorney the Court appoints to represent the interests of someone that is potentially not competent to manage their own affairs. Henry Morphis is also often appointed by the Court as guardian of the estate for individuals who have been declared incompetent and do not have anyone who is suitable to manage the individual’s finances.
If you would like to discuss how Morphis Law & Mediation can be of assistance then give us a call today at (828) 328-5297.