What would you do if you could no longer make decisions for yourself? This is an agonizing question to ask yourself. However, it’s essential to prepare for the unexpected. If you become incapacitated and can’t make decisions for yourself, who will step in to take care of your affairs? Let’s look at how to define incapacity and what happens if you can’t make decisions for yourself in North Carolina.
What is Incapacity and What Does it Mean in North Carolina?
Incapacity is the inability to take care of yourself or manage your own affairs. Incapacity comes from physical or mental illness, developmental disabilities, brain injury, substance abuse, old age. You can also suffer incapacity from any other condition that prevents you from being able to make decisions for yourself.
As an incapacitated individual, you cannot decide about your own medical care, finances, and living situation. If you face incapacitation and don’t have a plan in place for who will take care of your affairs, the state of North Carolina has laws in place to protect your interests.
These laws appoint someone called a “guardian” to ensure that someone meets your basic needs and tends to your financial affairs. A guardian can be a family member, friend, or even a professional. The court will appoint a guardian if no one else offers to take on this responsibility.
It’s important to note that incapacitation does not mean losing all of your rights. You still have the right to object to the appointment of a guardian, and you still have the right to make decisions about your medical care (if you can).
Who Can Become Your Guardian if You’re Incapacitated?
If you become incapacitated and don’t have a plan in place, the court will appoint a guardian. The court will choose the person who is best suited to take on this responsibility, taking into account your wishes (if you can express them) and your family’s needs. The court will also consider whether the person is willing and capable of taking on this responsibility.
How to Designate Someone to Care for You Without Court Interference
If you want to designate someone to take care of your affairs in case of incapacitation, you can create a power of attorney. A power of attorney is a legal document that gives someone else the authority to make decisions on your behalf.
You can create a general power of attorney which allows the person you designate (called your “agent”) to make all decisions for you. Or, you can create a limited power of attorney which only allows your agent to make specific decisions that you specify in the document.
Creating a power of attorney is essential to ensure that others respect your wishes in case of incapacitation. Without a power of attorney, the court will appoint a guardian to make decisions for you, and you may disagree with those decisions.
When Guardianship Becomes Necessary
If you don’t have a power of attorney specifying someone who will care for you by making your decisions, someone may petition the court to appoint a guardian. Usually, a family member or friend petitions the court on your behalf because of concern for your welfare.
The court will appoint a guardian if it finds incapacitation and inability to make decisions for yourself. Once the court appoints a guardian, they have the authority to make decisions on your behalf, including your medical care, finances, and living situation. If you have any objections to the appointment of a guardian, you can express them to the court.
Different Types of Guardianships Available in North Carolina
In some cases, the court may appoint a limited guardianship that only covers decision-making in certain areas of your life, such as a guardian for your finances only. A guardian for your personal care only would ensure that you have the living situation you need for your health condition.
The main types of guardianship available in NC include:
- A guardian of the person makes decisions about your living situation, medical care, and other personal matters.
- A guardian of the estate manages your finances and property.
- A general guardian has both powers of a guardian of the person and a guardian of the estate.
You May Still Be Able to Make Some Decisions for Yourself
Even if you are incapacitated and have someone else making decisions on your behalf, you may still be able to make some decisions for yourself. For example, you may be able to express your wishes about your medical care or living situation. If you can communicate your desires, the court will consider them when making decisions on your behalf.
Define Incapacity to Better Understand Planning for the Future
Incapacity can be a complex topic to think about. But it’s essential to be prepared for incapacitation and the possibility of an inability to make decisions for yourself. By understanding the definition of incapacity, you can ensure that others will respect your wishes for your future.
You can also draw up a power of attorney to designate someone to make decisions on your behalf. A power of attorney ensures you won’t rely on a future court to appoint a guardian for yourself.
Tips for Choosing a Power of Attorney Agent
When choosing someone to be your agent, it’s crucial to pick someone you trust. It would help if you also chose someone responsible who has time to make decisions on your behalf. And, if possible, you should choose someone who lives close by so that they can easily access your medical records and other important information.
If you ever want to change the person you’ve designated as your agent or cancel a power of attorney altogether, you can do so by revoking or amending the document. Keep in mind that once you revoke or amend a power of attorney, no one can reinstate it without your consent. So if you later become incapacitated, the person you designated as your agent may no longer have the authority to make decisions on your behalf.
We Can Help
In North Carolina, incapacity is a legal term that refers to when someone can no longer make decisions for themselves. It can be due to age, illness, or injury. If you find yourself in this situation, it’s crucial to have a plan in place for who will take care of you and make decisions on your behalf.
Guardianship proceedings can be costly and time-consuming, so it’s best to designate someone ahead of time through estate planning documents like a power of attorney or living will. We help you make plans to ensure a bright future no matter what comes. Contact us at Cape Fear Law for your estate planning needs.
References: