Elder Law Report
Elder Law Report
Guardianship Nightmares, Explained
Most people assume a caring family and a good doctor’s note will steer a loved one through a crisis. The hard truth in North Carolina: only a judge can declare incompetence, the evidence bar is high, and family conflict can put strangers in charge of the most personal decisions. We unpack the four biggest guardianship nightmares—thin medical proof, missing powers of attorney, contested petitions, and defaulting to third-party guardians—and show how to navigate each one with strategy, clarity, and compassion.
We start with the legal spine of guardianship: the petition, the “clear, cogent, and convincing” standard, and why medical records and recent physician affidavits carry outsized weight. From there, we explain court-ordered multidisciplinary evaluations, the Guardian ad Litem’s independent role, and how to build a credible record when access to files is limited. Then we turn to prevention. Solid general durable and healthcare powers of attorney do more than name agents; they can eliminate the need for guardianship, guide the court to respect prior choices, and keep decision-making with the people you trust. When families clash, we share what courts look for—risk of blocked visitation, fiduciary red flags, and persistent hostility—and why that often leads to professional guardians for the estate and DSS for the person.
Along the way, we offer practical steps: how to prepare evidence, propose limited guardianship when appropriate, and craft estate planning that anticipates real life—successor agents, communication plans, and safeguards that reduce courtroom risk. If you want to protect autonomy, avoid unnecessary litigation, and keep care decisions close to home, this guide gives you the roadmap.
If this helped you think differently about guardianship and planning, subscribe, share this episode with someone who needs it, and leave a review with your biggest question so we can cover it next time.
Hi, this is Greg McIntyre, and this is Brenton Guardianship Nightmares. Hey Brenton. Hey, I've got Brenton Begley here with me as well. And Brenton does a ton of guardianship. He has a lot of experience with guardianships. And um guardianship can be a nightmare, the whole proceeding. Let's define what guardianships are. In North Carolina, if someone is struggling with competence, a third party, could be a child, could be DSS, could be any party that can bring a petition to court to declare that person not competent. And the only person in North Carolina that can have legal authority to declare someone not competent, not a doctor, that's an opinion. It's a medical opinion, it can be an expert opinion and evidence in a guardianship case, but it's the judge in a guardianship case. Then the second part of that hearing is who is the appropriate guardian? And many times we are representing the petitioner, the applicant to be the guardian. But there can be nightmares in guardianship cases. People don't understand the complexity, the controversy, and how to avoid it. So that's what we want to expose during our short talk today. And we want it to be educational for everyone watching. And I have fun working through these things too. And I'm going to learn from attorney Britton Begley today. So, Brenton, when we pregame this, we talked about four areas that are guardianship nightmares. Lack of medical evidence, no powers of attorney, contested situations where they're highly contested and there's a huge fight going on between family members or parties over who should be the guardian. And then the last one, the fourth, is the court acquiescing or defaulting to appointing a third party that's not related to the family, that could be an attorney as the guardian. So let's hit those points one by one. No medical evidence. What do you mean when you go into a guardianship that there's no medical evidence or it's hard to get?
Brenton:Well, you know, the petition when it's filed is what begins the process of asking the court to adjudicate somebody incompetent. And on that petition, you're going through and saying what they can and can't do. And, you know, basically normal activities of daily living, normal things that we take for granted every day. Somebody who's incompetent wouldn't be able to do. So you're making these allegations, and you know, that's not enough because you have to prove to the court by clear, cogent, and convincing evidence that, and which is a higher standard than just like a regular civil case, like preponderance of the evidence. You have to you have to prove it by clear, cogent, and convincing. So you're petitioning the court, and the clerk is setting in in judgment of this case, so the clerk has to be fully convinced of this person's competency or incompetency. And the best way to do that is through medical records. You know, you can put on people's testimony of their personal observation of the person, like, hey, I spoke with you know, dad the other day, he couldn't tell me where he was, he couldn't tell me who I was, things like that. And those help support your claims, but really the best way to demonstrate incompetency is with medical records or a physician signing an affidavit, a physician that's seen this person and evaluated them very recently. Um, and that that's that's necessary, quite frankly, to be able to move forward on a guardianship matter in North Carolina.
Greg:But even if we don't have medical evidence, but we have enough to bring the guardianship either for an interim, an emergency situation, or just standard, we can petition the court to get that and order that medical evidence to be produced or to have an MDE multidisciplinary evaluation, correct? We can petition the court to do that to have that person evaluated.
Brenton:Yeah, I mean, because you might not have handy access to this individual's medical record. So what you can do is you can say, look, we're gonna ask the court to order an evaluation, and our allegations plus some supporting testimony is gonna demonstrate to the court that there's gonna be a need for this person to be evaluated. Um, plus, you know, the court appoints a third-party independent attorney called the GAL, and the GAL is gonna go out and talk to the respondent. And if, you know, based on their personal observation, they think it's important that they be evaluated, then you know that MDE is gonna go through. Um, they're gonna have a psychological examination, a physical examination, and an examination done by a social worker, and they're gonna make a report to the court as to whether or not they're competent and whether a guardian is needed.
Greg:Sure. Sure. So let's move on to the second one, which is no powers of attorney are currently in place. The person for which you're seeking guardianship for, called the respondent, who you're saying, hey, this person is not competent to handle their financial, legal, andor healthcare affairs, they have not had the foresight or done the estate planning to put in place a general durable power of attorney or for financial and legal matters or a healthcare power of attorney to appoint the person named as agent to handle their health care matters, right? Is that what we're talking about here?
Brenton:Right. So, you know, um, really we could have started off with this one because a guardianship is typically only necessary if there is no power of attorney in place. Now, you could have a situation where a power of attorney is in place and the person who is named is either not around, not able to do it, or shouldn't be the one doing it. But generally, if there's a power of attorney in place, it obviates the need to appoint a guardian to act on that person's behalf because the whole purpose of the power of attorney is you know contemplating, hey, one day I might become incompetent, I'm gonna put in a formal legal document um the powers that I'm gonna give a trusted loved one and I'm gonna appoint them, maybe one or multiple people, to be able to act on my behalf if I ever do become incompetent.
Greg:And in the law, if you do have those powers of attorney in place, so this is a safeguard if you want to avoid guardianships and you're worried about that, or who might pursue guardianship over you, you can proactively appoint someone ahead of time in those documents, in those powers of attorney that obviates the need for a guardianship. But also, if there is a guardianship brought and you have those powers of attorney in place, written in the law, the court is bound to consider those powers of attorney and the fact that you previously appointed those agents and abide by that, and maybe even dismiss the guardianship, right?
Brenton:Right. I mean, it's it's it's found in um chapter 32c of the general statutes where it talks about powers of attorney. It could be in the power of attorney itself. I know that's how we draft ours, is say, hey, if a guardianship proceeding is ever brought, we'd like the people here named, you know, my agent as my guardian, if the court's going to appoint one. And then in chapter um uh 32 uh of the North Carolina general statutes, you have um also, or I'm sorry, 35A, which deals with uh gardenships. You have also, you know, you may not even meet the definition of incompetent if you do have a trusted individual in place under a valid power of attorney. So, like you're saying, they might even dismiss the guardianship.
Greg:Phenomenal. Now, I know we've all of our attorneys, you especially, have been in some really highly contested and conflicted guardianship cases. And when we say that, we mean our client isn't the only one pursuing guardianship. There's other party, another party or multiple parties that have also filed petitions or motions to intervene and have been accepted into the case and are fighting for who should be the guardian over a sibling or mom or dad, right? That happens a lot. So tell me about how that can be a nightmare for a client.
Brenton:Well, just like any other uh litigation, you have family members opposing each other. Um, you know, so and it happens more in in gardenship. You have two parties opposing each other, and here it tends to be family members or loved ones, and so it can be nightmare from that perspective because there's a lot of history there, and all of that dirty laundry is going to be aired out in front of the court, like it or not, because the court is tasked with determining who should be the guardian, who should be put in a trusted position over this individual. And so that can make it incredibly difficult for clients or people who participate in that, you know. And the other thing is that if the court sees that the family can't get along, even if they do find that one or more people would be suitable to act as guardian, the court is probably gonna split the proverbial baby, right? Pull the King David and say, look, we do not feel comfortable appointing somebody, even though they may be fit, that's not gonna get along with the rest of the family, that might block visitation, that might be acting in a way to keep other family members from seeing this person. So what we're gonna do is go ahead and appoint a third-party independent attorney as guardian over the estate and DSS is guardian over the person. And then the family doesn't have any meaningful decision-making power over that individual, and you have to rely on strangers to act in their best interest.
Greg:So that was the fourth nightmare, is out of those highly contested hearings, the likely result is many times somebody who's not a family member is going to be appointed by the court to be over that person. Right. And a McIntyre Elder Law, we can help you avoid the nightmares and guardianship by putting proper estate planning in place ahead of time. And while nightmares aren't real because you can wake up for them from them, we can help you also navigate those hearings and take a lot of the pain out of those situations by handling those in your best interest, advising you, and then going to court and arguing on your behalf. So we do all those things on a daily basis, and we have highly trained and experienced attorneys that handle those cases for our clients. Thank you, Brenton, for discussing the guardianship nightmares today and for flushing those out. And stay tuned for the next Elder Law report. We'll we'll bring you some additional great legal information and insight on the practice surrounding estate planning, elder law, probate, trust administration, and litigation surrounding all those topics. Thank you, Brenton. We'll see you next time. All right.