Partnership Chair
North Carolina guardianship and special needs laws provide a legal path for loved ones and family members to apply for guardianship of an adult with disabilities. The laws can be complicated and a caregiver focused on caring for an adult with disabilities might be overwhelmed by the legal requirements to obtain guardianship or set up a special needs trust. Our North Carolina elder law attorneys handle the legal work for you so that you can continue focusing your time on caring for your family member.
What Is a Guardianship for an Adult with Disabilities in North Carolina?
A guardian is appointed by the court to make decisions and act on behalf of someone incapable of making decisions for themselves. They do not have the capacity to manage their personal affairs, finances, medical care, or any combination. The court may appoint a guardian for a minor child who has received assets or an adult with disabilities.
The guardian’s role is to make decisions for the individual that are in their best interests. The guardian should allow the person to participate as much as possible in the decisions that affect them. However, when the person’s decisions conflict with their best interests, it is up to the guardian to make the decision that best protects the individual under their care.
When Does a Court Appoint a Guardian for an Adult?
There are many reasons why the court might grant guardianship of an adult. Some reasons include, but are not limited to:
- Mental illness
- Developmental disability
- Degenerative brain disorders, such as Alzheimer’s or dementia
- Mental deficiency or intellectual disability
- An accident or illness leaves the person mentally incapacitated because of an injury
- An illness results in a permanent vegetative state or coma
The person petitioning for guardianship has the burden of proving the adult is incompetent and unable to handle their affairs. Showing poor judgment is generally not sufficient to rule someone incompetent.
Instead, there must be medical and other evidence proving the person is incapable of making decisions or communicating their decisions because of a physical or mental condition or that they are acutely vulnerable or at-risk without protection of a guardian. The bottom line is that the court must find the adult incompetent to appoint a guardian.
Setting Up a Special Needs Trust for an Adult with Disabilities
After being appointed guardian, you should discuss your loved one’s future care with an estate planning lawyer. Many adults with disabilities receive government assistance from one or more programs. These programs usually have specific eligibility requirements, including limitations and restrictions for income and resources.
A special needs trust allows you and other family members to leave money and property to a disabled adult when you die without interfering with eligibility for government assistance. An experienced lawyer can help you set up a special needs trust that can help supplement government assistance to ensure your loved one has the continued care they need if something should happen to you.
Call Now for a Free Consultation With Our North Carolina Estate Planning Attorneys
Caring for an adult with disabilities can be challenging. However, there are numerous resources available to help. Our North Carolina estate planning attorneys work with you to determine the best strategy for providing for your loved one’s needs. Reach out to our office today to request a free consultation with one of our experienced lawyers.
