Principles of Guardianship
- Guardianship should be used only as a last resort and only when less intrusive alternatives are not appropriate.
- Guardianship should be sought only when it is clear that it will give an individual a fuller capacity for exercising his or her rights.
- Guardianship should seek to preserve opportunities for the individual to exercise rights that are consistent with his or her abilities.
- Guardianship should be tailored to meet the needs of each individual.
- Guardianship should periodically be reviewed. Alternatives, including limited guardianship and restoration to competency, should be considered.
Principles of for the Person Involved
- The Ward should be involved in all decision making consistent with his or her capabilities.
- The Ward has the right to petition the court for periodic review of the Guardianship and for restoration to competency.
- The Ward should be allowed to exercise those rights consistent with his or her capabilities.
- The Ward is entitled to be represented by an attorney or a guardian ad litem (clerk appointed attorney) who represents the expressed wishes of the Ward in Guardianship proceedings.
The Guardian’s Responsibilities
A Guardian serves as a surrogate decision maker and advocate for an individual (the Ward) who has been determined incompetent. However, the Guardian must allow the Ward to participate as much as possible in the decisions affecting him or her. The Guardian is also required to preserve the opportunity for the Ward to exercise the rights that are within his or her comprehension and judgment, allowing for the same possibility of error as a person who is not incompetent.
The Guardian must advocate for the Ward and protect the Ward’s right to make his or her own choices. Wards should be given the opportunity to take as much control over their lives as possible. This means that Guardians must support Wards in developing the necessary skills for assuming responsibility in their decision making.
If the Ward is incapable of making certain decisions for him or herself, the Guardian should make decisions based on the expressed wishes of the Ward or what the Ward would decide if he or she was capable of making the decisions. In order to make the best decision, the Guardian should seek prior information about the Ward’s value system, wishes, and needs. The Guardian may get this information from the Ward or the Ward’s family, friends, or a legal document, such as a Living Will or Health Care Power of Attorney. In instances where the Ward has never been able to participate in the decision making process or express wishes and values, the Guardian makes decisions based on the Ward’s best interest.
The Guardian must be sensitive to the Ward’s needs, values, and wishes. Through this sensitivity, the Guardian can ensure that the decisions he or she makes with the Ward are individualized, consistent with the Ward’s value system, and are in the Ward’s best interest. No Guardian may consent to the sterilization of a Ward without a court order.
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Responsibilities of Guardians in North Carolina (AOC-SP-850)
Responsabilidades de los Tutores en Carolina del Norte (AOC-SP-850)
Modifying an Existing Guardianship
If a guardianship has already been established and you would like to see it modified, you may bring your request to the attention of the Clerk by filing a Motion in the Cause to Modify Guardianship (AOC-E-415).
Alternatives to Guardianship and Incompetency:
For information about health care powers of attorney and living wills (health care directives), please visit the North Carolina Secretary of State’s Advanced Health Care Directive Registry. (http://www.secretary.state.nc.us/ahcdr/)