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Estate planning is about more than deciding who gets your property after you have passed away. You should also ask yourself, “What happens if I become incapacitated without a power of attorney, a health care power of attorney, and a living will in North Carolina?”

Just as intestate succession is the North Carolina’s default estate plan for your property in the event you die without a will, incompetency and guardianship proceedings are the state’s default estate plan for your property as well as your person in the event you become incapacitated without a power of attorney, health care power of attorney, and a living will.

If you become incapacitated, you will not be able to manage your own property or make your own health care decisions. You will have to rely on someone else to manage your property and make health care decisions for you. But who will make these decisions? If you have a durable power of attorney and a health care power of attorney in place, the people you named in those documents would have authority to look after your property and your health.

But what if you don’t have a durable power of attorney or health care power of attorney? With respect to managing your property, no one will have authority to make those decisions without first going through the court process of having a guardian appointed. With respect to your health care decisions, your spouse or next of kin will have authority in most cases. I say in most cases because if a “guardian of the person” has been appointed over you through the court process, that person will have authority instead.

There are two parts to the court process to have a guardian appointed in North Carolina. First, someone must file a petition with the Clerk of Superior Court in the county where you live to start an “incompetency” proceeding. Any person or a state agency can bring this petition. The procedure is similar to most other court proceedings, except that you will appear before the clerk instead of a judge in most cases. The person who filed the petition must prove to the clerk that you are incompetent, which means you are legally incapable of making your own decisions or caring for yourself. To make sure that your best interests are represented, the clerk will appoint an attorney, called a “guardian ad litem” to represent you in the proceedings.

To prove that you are legally incompetent, the person must often subpoena witnesses, including doctors who will charge a fee to testify, use the discovery process to get access to medical records or other documentation, and order a multidisciplinary evaluation.

Once the clerk is satisfied that you are legally incompetent, the person who filed the incompetency petition will proceed to the second part of the process and file a petition to have a guardian appointed. The clerk will again use many types of evidence to determine who is the best person to serve as your guardian. The clerk may even order a state agency to do its own investigation as to who is best suited to be your guardian.

After weighing all of the evidence, the clerk will appoint your guardian. If you regain competency, you will have to go to the clerk of court again to have the guardianship terminated.

You may thinking, “Great! The State of North Carolina has a plan in place, so I don’t need to worry about doing any estate planning on my own. Why do I need a durable power of attorney or a health care power of attorney? Why do I need a living will?”

There are several reasons why having your own estate plan is better than relying on the state’s incompetency and guardianship court proceedings:

  1. Control – You can’t know for sure who the clerk of court will appoint as your guardian. Unfortunately, it is common in these situations for a friend or family member to have themselves appointed as your guardian and then use the power granted to serve their own interests instead of yours. Most people think, “My family wouldn’t do that,” but it happens all the time. Through your estate plan, you can use a durable power of attorney to appoint a person to manage your property. You can use a health care power of attorney to appoint a person to make health care decisions for you and a living will to record your own wishes for medical treatment in end-of-life situations. In most situations, these documents prevent the need for guardianship proceedings. Even if you face extraordinary circumstances were you still need a guardian in addition to your agents under the powers of attorney, you can designate a specific person or list of people that you trust to serve as your guardian in the event you need one. In short, an estate plan gives you control over who will have the power to make decisions regarding your health and your property.

  2. Cost – As with most court proceedings, guardianship proceedings tend to be expensive. Between court costs, attorney fees, and expert witness fees, the total cost can quickly get into the thousands of dollars.

  3. Peace of Mind – In addition to financial costs, the proceedings will be time consuming for your family and will be likely to cause them significant stress and emotional hardship. By having an estate plan in place, you will provide peace of mind for yourself and your family because you and they will know exactly who will be in charge of your health and finances in case you become incapacitated. You will also minimize the opportunity for family arguments about who would be the best guardian and what kind of decisions he or she should make on your behalf.

Estate Planning - It’s all about your Family

What would happen to your family if something happened to you tomorrow?

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