19 Jul Obtaining Legal Authority to Make Decisions
“I need legal authority to assist my 18 year-old adult child.”
As a matter of law, a child becomes an adult at the age of 18. General legal authority for a parent to make decisions ceases at 18, regardless of the adult child’s special needs and/or limitations. If a parent wants legal authority to help support their children at 18 and beyond, there are two options: Power of Attorney and Guardianship. Thought should be given to these options before the child turns 18 so that you are ready to take action at the appropriate time.
Power of Attorney
A power of attorney (POA) may be a “shoe that fits,” if an 18+ year-old adult has the mental capacity to execute this legal document; mental capacity is determined by the attorney who you engage to execute these legal documents. The adult, called the “principal” in the document, gives authority to an agent to act for the principal. A POA, routinely drafted by an attorney, does not engage or involve the Court system. There are different types of POAs that you can discuss with your attorney: financial, health, healthcare directive/living will, and HIPPA, which allows healthcare information about your child to be released to you, but does not allow you to make any decisions about that health care. By law (Chapter 32A of the General Statutes), the agent must always act in the best interests of the principal and may not be compensated for their services. Also, the form must not only be notarized during signature time but also witnessed by at least two (2) persons. It should be noted that the adult can change or terminate a POA at any time.
Obtaining full or limited guardianship for an 18+ year-old adult child provides a parent with the legal authority to assist and/or make medical and financial decisions for an 18+ year-old adult child. Becoming a guardian is a legal process, which engages the Clerk of Superior Court and may involve ongoing oversight, depending on the type of guardianship.
The Clerk of Superior Court, in each of NC’s 100 counties, presides over the petition, application, appointment, and oversight of guardianships. Obtaining guardianship is not “walk in, walk out;” rather, it is a legal process. Though applicable laws and forms are uniform statewide, a parent should reach out to the Clerk’s office in their county of residence for County specific “next-step” information; especially, if proceeding without an attorney. Find a Clerk’s name and contact information at www.nccourts.gov.
A guardianship may be full or limited in scope. NC adopted the UAGPPJA (Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act) so that transferring a guardianship from another state to NC may be possible. Check with an attorney and/or the Clerk. Also, see Transferring Guardianship Between States. Once established, a NC guardianship may be modified or terminated, which engages a different legal process through the Clerk’s office.
The Clerk is an information resource and, also, presides as a judge for guardianship cases. Be mindful that the Clerk provides legal related information; the Clerk cannot provide legal advice. For example, the Clerk cannot tell a person what to do. Legal assistance from an attorney may be needed or desired by the Petitioner (the person requesting guardianship). A petitioner can be anyone, not only a parent. If without counsel, the petitioner acts as his/her own attorney in the presentation of evidence to the Clerk.
In a nutshell:
- A parent(s) may petition the Clerk of Superior Court for guardianship of a child after the child reaches the age of 17½ years old and any time after 18 years of age. (All mentioned forms can be downloaded from www.nccourts.gov or provided by a Clerk.)
- A petitioning parent may use Form AOC-SP-200. A completed petition is filed with the Clerk’s office. Online filing is not available.
- A letter from the 17½ child’s or 18+ year-old adult’s medical doctor may be required. The letter should state/describe the nature of the special needs and/or limitations and include the medical doctor’s opinion regarding the need for a guardian.
- A $120.00 filing fee may be payable to the Clerk of Superior Court when the petition is filed. The filing fee may be waived if the 17½ child or 18+ year-old adult’s child is deemed to be indigent.
- North Carolina law requires that a County Sheriff’s Department serve the 17½ child or 18+ year-old adult with a copy of the filed Petition and the Notice of Hearing.
- A hearing date is normally set at least 3 weeks following the date of filing the Petition. The hearing date must be at least 10 days from date of service on the 17½ child or 18+ year-old adult by the Sheriff.
- At the time when the Petition is filed and a hearing date is established, the Clerk’s office appoints a Guardian ad litem (GAL). The GAL is an attorney that represents the 17½ child or 18+ year-old adult and advocates for his/her best interests.
- Prior to the hearing, the GAL will meet with the 17½ child or 18+ year-old adult, attend the hearing, and provide the Clerk with a recommendation regarding capacity and need for guardianship.
- The Clerk presides over the hearing, in a location determined by the Clerk’s office. The 17½ child or 18+ year-old adult may or may not be required to attend the hearing. Though a public hearing, generally only interested parties attend.
- Usually one parent files as the Petitioner. While consent from a non-petitioning parent is not required, parents should understand, discuss, and decide if one or both parents shall apply to become a guardian.
- At hearing, the Clerk first decides if a 17½ child or 18+ year-old adult needs a guardian. If yes, the Clerk next decides the type of guardianship and who shall be appointed to serve as guardian. There are 3 types of guardianship:
- Guardian of the Person – One who manages personal and medical affairs
- Guardian of the Estate – One who manages the financial affairs
- General Guardian – One who is both a Guardian of the Person and Guardian of the Estate
The types of guardianship are explained in a pamphlet, “Responsibilities of Guardians in NC” (Form AOC-SP-850), which is available at a Clerk’s office or online (www.nccourts.gov).
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