​By Attorney Kelly Rains Jesson

​Naming a guardian for minor children is one of the top reasons why a parent engages in estate planning. The only way to name a guardian for a minor child in the state of North Carolina is in a will (N.C.G.S. § 35A-1225(a) references “last will and testament” but does not mention any other document). So, making it a Facebook status or writing it on a cocktail napkin before a trip is not going to cut it.

Even though the statute states that the guardian named by the parent is a “recommendation” that serves as a “strong guide” to the clerk, court history shows that the clerk almost always will appoint the guardian named in the will, unless it’s not in the best interests of the child (for example, if the named guardian was a drug addict, felon, or incapacitated). The North Carolina legislature wrote that “[p]arents are presumed to know the best interest of their children.”

We recommend that parents agree on their choice of guardian in the event they both pass at the same time. If they name different guardians in their respective wills, there could be a dispute over who would serve, which defeats the purpose of naming a guardian in the will in the first place. However, a long-surviving spouse may update his/her will after the first spouse passes away. If that is the case, the court will appoint the guardian named in the will with the latest date.
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If you or someone you know needs help creating a will and naming a guardian for minor children, give Jesson & Rains a call!

​As the summer comes to an end and we start switching gears, there are some important things to remember for your college student.  With the chaos that accompanies getting them back to their college campus, it can be easy to forget about your child's healthcare documents. 

It is important to consider asking them to execute healthcare documents naming you agent.  Once your child is 18 years old, you may not be able to make medical decisions for them or access medical documents.  If you have a child returning to college this Fall, consider giving Jesson & Rains a call to consider your options.  It is never too soon to start thinking about being prepared for all possibilities, and you can have peace of mind knowing that you are prepared.

​Parents living longer than ever.[1]  The first generation of baby boomers have turned 70.   Cases of Alzheimer’s and dementia are on the rise.[2]  Health care costs are increasing.
 
We oftentimes get calls from adult children who want to hire us to “get power of attorney over their parent” to help them with bills and medical care.  Unfortunately, that is not the way a power of attorney works.  While the adult child can certainly schedule the appointment with us and even pay for the legal document, it is the parent’s document, and the parent is the client.  Attorneys are confined to the parent’s wishes.

If the elderly parent already lacks the capacity to enter into a contract or make legal decisions, or if the parent does not understand the effect of the power of attorney document, it is too late for the adult child to be named as their parent’s agent under a power of attorney.  If the elderly parent lacks capacity and needs help handling his or her affairs, the adult child may need to become legal guardian.

What the differences between Power of Attorney & Guardianship?
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With a power of attorney, the principal names an agent to act on the principal’s behalf in the event of incapacity.  It enables the agent to handle the principal’s business and financial affairs.  A health care power of attorney is a separate document that names an agent to act on behalf of the principal for medical decisions.  The agent’s powers are very broad unless expressly limited by the documents.  However, there is nothing preventing the principal himself from conducting business on his own.

With guardianship, a court makes a finding that the principal lacks capacity and removes that individual’s authority to make decisions.[3]  The court appoints a guardian to make those decisions from then on out. Once an institution, like a bank, learns of the guardianship, it would not be permitted to listen to the principal’s instructions – only the guardian’s.[4]  The court’s order is permanent until the principal regains capacity and a subsequent hearing is held to restore his or her rights.  Guardians have to file reports and/or yearly accountings with the court.

As you can see, guardianship is not to be taken lightly.  A court’s adjudication of incompetency essentially strips away a person’s rights, which is why we recommend getting power of attorney documents in place before capacity becomes an issue.  It is also more work on the guardian’s part due to the court proceedings and reporting requirements.  Readers should not only get their documents in place but talk to their parents or other elderly loved ones and encourage them to visit with an attorney before incapacity becomes an issue.
 
 


[1] http://abcnews.go.com/Health/story?id=118056.
 

[2] http://www.alz.org/facts/.
 

[3] There are three types of guardians: guardian of the estate (authority over property), guardian of the person, or general guardian (both estate and person).

[4] Unless the court orders a limited guardianship allowing the principal to retain certain legal rights and privileges to which the ward was entitled before the ward was adjudged incompetent.