The following was originally published on AARP North Carolina’s website on June 1, 2023. It was written by Thomas Korosec
When Carol Kelly’s father began developing memory problems in his late 80s, she uprooted her life and moved from suburban Denver to Chapel Hill to care for him.
He gave her power of attorney, which allowed her to make important decisions about his finances and what care he received. Looking back, Kelly, 71, a retired public school principal, is grateful she was able to fill that need instead of relying on a professional guardian.
“I think it’s a positive if we can avoid some guardianships,” she says. “As we start losing some of our abilities, we still want to maintain our independence and make decisions that affect our lives.”
Kelly is an advocate with Rethinking Guardianship, a collaborative of government, academic and nonprofit groups. The group is calling on state lawmakers to pass legislation that would require that less-restrictive alternatives be considered before resorting to court-ordered guardianships for older North Carolinians and people with disabilities.
Sponsored by three Republican state senators, the bill would make guardianship a last resort; give superior-court clerks, who have jurisdiction over guardianship matters, more oversight; and ensure people overseen by guardians are informed of their rights.
AARP North Carolina urges legislators to pass the measure.
“If you are sick or aging and can’t take care of yourself … you don’t want to sign away all your rights,” says Lisa Riegel, AARP North Carolina’s manager of advocacy and livable communities.
A last resort
In North Carolina, superior-court clerks appoint guardians in cases in which individuals are deemed unable to make decisions for themselves for reasons such as dementia, an intellectual disability or mental illness.
Guardians make decisions for individuals subject to guardianship, such as where they live, how their money is spent and what medical care they receive.
Under current state law, if a superior-court clerk determines someone is incompetent, the clerk has no recourse but to assign a guardian, says Linda Kendall Fields, a clinical associate professor at the University of North Carolina School of Social Work in Chapel Hill.
The proposed legislation would make guardianship unnecessary if a less-restrictive alternative, such as supported decision making, could be used. That process lets an individual select advisers, such as friends, family members or professionals, who help them understand, contemplate and communicate decisions.
To ensure people are informed of their rights, they would receive a document detailing them; currently, that’s done orally, with no consistency about the information being shared, says Catherine Wilson, a Durham attorney who has experience in special needs planning and guardianships.
“This puts the rights of the person who is going through this process front and center,” she says.
The bill would also give superior-court clerks more oversight tools. For instance, if a guardian was doing a poor job or abuse was suspected, a clerk could call the guardian into a hearing. Under existing law, clerks can’t get involved on their own initiative but must rely on a third party, such as a relative, to petition for an oversight hearing, Wilson says.
The measure also has the support of the North Carolina Bar Association.