“Whether you want to protect yourself, a loved one, or are simply worried about what you might have to face in the future, knowing your options is essential regardless of

your current circumstances.”

GUARDIANS IN NORTH CAROLINA

PART 2

CHERYL K. DAVID North Carolina Estate Planning and Elder Law Attorney

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In our last discussion on guardians in North

Carolina, we looked at some basic legal issues

and concepts that form the basis of any

guardianship situation. This week we wanted

to expand on those concepts to look at some

more practical issues that people face in the

face of guardianship problems. Whether you

want to protect yourself, a loved one, or are

simply worried about what you might have to

face in the future, knowing your options is

essential regardless of your current

circumstances.

PROTECTING YOURSELF WHILE CAPABLE

No matter what guardianship issue you are worried about, your ability to act

depends upon one thing: your capacity. Every legal tool available to you that will

allow you to exert control over guardianship issues revolves around your ability

to make decisions and act upon them. Further, once you lose capacity, you lose

this ability to exert control.

Capacity is, luckily, something most people have. If you are someone with no

serious health problems, developmental or intellectual disabilities, or are

otherwise an average person, you have the legal ability to make choices. You don't

have to ask a court's permission to make any choice, and you don't have someone

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appointed by a court to make decisions for you. In this situation, there are a lot of

options you have when it comes to guardians.

On the other hand, let's say

you get diagnosed with

Alzheimer's disease or

dementia. Or, let's say

you're healthy but are

suddenly hospitalized after

suffering a serious

accident. In these type of

situations, you may lose

your capacity. And, once

it's gone, you have no way of knowing if, and when, it may return.

Once you lose capacity you are not able to make the legal tools that will allow you

to control guardianship issues.

PROTECTING YOURSELF OR OTHER ADULTS

What happens if you become incapacitated and need a guardian? Since you're not

able to make choices, how can you control who makes decisions on your behalf?

How can you make sure that your guardian will be someone you approve of?

The answer lies in crafting tools (while you are capable) that grant others your

decision-making responsibilities. These tools include powers of attorney, advance

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medical directives, and others, but they all do the same basic thing: they allow

you to choose who you want to serve as your representative. So, even if you

become incapacitated, you can have tools in place that will delegate your

authority to those of whom you approve, and do so automatically.

PROTECTING CHILDREN

Protecting yourself is one thing, but what about protecting your child? IF you are

the parent of a young child, can you choose who your child's guardian will be if

something happens to you?

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Yes, but you don't have the same amount of flexibility you do when you're

selecting representatives who will act on your behalf. While you can choose your

child's preferred guardian by naming your selection in a last will and testament,

the court will have the final say over who that person will be.

When selecting a child's guardian, always be sure your choice is willing and able

to care for your child. It's also a good idea to name one or more back-ups in case

your first choice isn't suitable, as well as make sure you and the child's other

parent come to an agreement over your choice so a court doesn't have to choose

between different guardians names by both of you.

CREATING PROTECTIONS AND GIVING YOURSELF OPTIONS

If questions about guardians, losing capacity, or the guardianship process have

you worried, you're not being paranoid. All too often people fail to take steps to

protect themselves before something goes wrong. Then, after something does

happen, those who are unprepared are no longer capable of acting, and their

families are left to deal with the aftermath.

Luckily, even by taking the time to read this you are already far ahead of most

people. Deciding to learn about guardianship questions is important, but learning

should not be your last step. It's vital to go beyond self-education and take the

initiative by contacting us to schedule an appointment so we can talk about your

concerns. There are a lot of options available for people who are concerned about

guardianship issues, and a variety of choices you'll have to make when you decide

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to act. The attorneys and staff at the Law Offices of Cheryl David have counseled

many of our clients through these issues, and are ready to help you. All you have

to do is contact us.

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ABOUT THE AUTHOR

Cheryl David is a graduate of UNC-Chapel Hill, the University of Baltimore School of Law, and the prestigious Trial Lawyer’s College presided over by Gerry Spence. A former Administrative Judge, Cheryl is certified as an Estate Planning Law Specialist by the ABA accredited Estate Law Specialists Board, Inc. She is also a member of the American Academy of Estate Planning Attorneys, Medicaid Practice Systems and the National Academy of Elder Law Attorneys.

In 2008, Cheryl received the honor of becoming a Fellow with the American Academy of Estate Planning Attorneys.

The Fellow program recognizes Academy Members who demonstrate advanced expertise and significant practical experience in the total estate planning, trust, tax planning, guardianship, probate and estate administration fields. In order to maintain this advanced expertise, Cheryl takes over 36 hours of continuing education in Estate Planning, Elder Law, and Taxation each year. Also a Financial Planner, she holds the Series 7 and 66 Investment Licenses in addition to both Insurance and Long Term Care/Medicare designations.

Her professional capabilities, together with over 25 years in practice, have combined to bring positive change to the lives of over 4500 clients and their families.

528 College Road Greensboro, NC 27410 Phone: (336) 547-9999 Fax: (336) 547-9477 WWW.CHERYLDAVID.COM