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October 1, 2025 12 mins

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.

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Transcript

Episode Transcript

Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Greg (00:01):
Hi, this is Greg McIntyre, and this is Brenton
Guardianship Nightmares.
Hey Brenton.
Hey, I've got Brenton Begleyhere with me as well.
And Brenton does a ton ofguardianship.
He has a lot of experience withguardianships.
And um guardianship can be anightmare, the whole proceeding.

(00:25):
Let's define what guardianshipsare.
In North Carolina, if someoneis struggling with competence, a
third party, could be a child,could be DSS, could be any party
that can bring a petition tocourt to declare that person not

(00:45):
competent.
And the only person in NorthCarolina that can have legal
authority to declare someone notcompetent, not a doctor, that's
an opinion.
It's a medical opinion, it canbe an expert opinion and
evidence in a guardianship case,but it's the judge in a
guardianship case.
Then the second part of thathearing is who is the
appropriate guardian?

(01:05):
And many times we arerepresenting the petitioner, the
applicant to be the guardian.
But there can be nightmares inguardianship cases.
People don't understand thecomplexity, the controversy, and
how to avoid it.
So that's what we want toexpose during our short talk

(01:27):
today.
And we want it to beeducational for everyone
watching.
And I have fun working throughthese things too.
And I'm going to learn fromattorney Britton Begley today.
So, Brenton, when we pregamethis, we talked about four areas
that are guardianshipnightmares.
Lack of medical evidence, nopowers of attorney, contested

(01:51):
situations where they're highlycontested and there's a huge
fight going on between familymembers or parties over who
should be the guardian.
And then the last one, thefourth, is the court acquiescing
or defaulting to appointing athird party that's not related
to the family, that could be anattorney as the guardian.

(02:11):
So let's hit those points oneby one.
No medical evidence.
What do you mean when you gointo a guardianship that there's
no medical evidence or it'shard to get?

Brenton (02:22):
Well, you know, the petition when it's filed is what
begins the process of askingthe court to adjudicate somebody
incompetent.
And on that petition, you'regoing through and saying what
they can and can't do.
And, you know, basically normalactivities of daily living,
normal things that we take forgranted every day.
Somebody who's incompetentwouldn't be able to do.

(02:42):
So you're making theseallegations, and you know,
that's not enough because youhave to prove to the court by
clear, cogent, and convincingevidence that, and which is a
higher standard than just like aregular civil case, like
preponderance of the evidence.
You have to you have to proveit by clear, cogent, and
convincing.
So you're petitioning thecourt, and the clerk is setting

(03:04):
in in judgment of this case, sothe clerk has to be fully
convinced of this person'scompetency or incompetency.
And the best way to do that isthrough medical records.
You know, you can put onpeople's testimony of their
personal observation of theperson, like, hey, I spoke with
you know, dad the other day, hecouldn't tell me where he was,

(03:25):
he couldn't tell me who I was,things like that.
And those help support yourclaims, but really the best way
to demonstrate incompetency iswith medical records or a
physician signing an affidavit,a physician that's seen this
person and evaluated them veryrecently.
Um, and that that's that'snecessary, quite frankly, to be

(03:47):
able to move forward on aguardianship matter in North
Carolina.

Greg (03:50):
But even if we don't have medical evidence, but we have
enough to bring the guardianshipeither for an interim, an
emergency situation, or juststandard, we can petition the
court to get that and order thatmedical evidence to be produced
or to have an MDEmultidisciplinary evaluation,

(04:12):
correct?
We can petition the court to dothat to have that person
evaluated.

Brenton (04:17):
Yeah, I mean, because you might not have handy access
to this individual's medicalrecord.
So what you can do is you cansay, look, we're gonna ask the
court to order an evaluation,and our allegations plus some
supporting testimony is gonnademonstrate to the court that
there's gonna be a need for thisperson to be evaluated.
Um, plus, you know, the courtappoints a third-party

(04:37):
independent attorney called theGAL, and the GAL is gonna go out
and talk to the respondent.
And if, you know, based ontheir personal observation, they
think it's important that theybe evaluated, then you know that
MDE is gonna go through.
Um, they're gonna have apsychological examination, a
physical examination, and anexamination done by a social

(04:58):
worker, and they're gonna make areport to the court as to
whether or not they're competentand whether a guardian is
needed.

Greg (05:04):
Sure.
Sure.
So let's move on to the secondone, which is no powers of
attorney are currently in place.
The person for which you'reseeking guardianship for, called
the respondent, who you'resaying, hey, this person is not
competent to handle theirfinancial, legal, andor
healthcare affairs, they havenot had the foresight or done

(05:26):
the estate planning to put inplace a general durable power of
attorney or for financial andlegal matters or a healthcare
power of attorney to appoint theperson named as agent to handle
their health care matters,right?
Is that what we're talkingabout here?

Brenton (05:40):
Right.
So, you know, um, really wecould have started off with this
one because a guardianship istypically only necessary if
there is no power of attorney inplace.
Now, you could have a situationwhere a power of attorney is in
place and the person who isnamed is either not around, not
able to do it, or shouldn't bethe one doing it.
But generally, if there's apower of attorney in place, it

(06:00):
obviates the need to appoint aguardian to act on that person's
behalf because the wholepurpose of the power of attorney
is you know contemplating, hey,one day I might become
incompetent, I'm gonna put in aformal legal document um the
powers that I'm gonna give atrusted loved one and I'm gonna
appoint them, maybe one ormultiple people, to be able to
act on my behalf if I ever dobecome incompetent.

Greg (06:26):
And in the law, if you do have those powers of attorney in
place, so this is a safeguardif you want to avoid
guardianships and you're worriedabout that, or who might pursue
guardianship over you, you canproactively appoint someone
ahead of time in thosedocuments, in those powers of
attorney that obviates the needfor a guardianship.

(06:50):
But also, if there is aguardianship brought and you
have those powers of attorney inplace, written in the law, the
court is bound to consider thosepowers of attorney and the fact
that you previously appointedthose agents and abide by that,
and maybe even dismiss theguardianship, right?

Brenton (07:10):
Right.
I mean, it's it's it's found inum chapter 32c of the general
statutes where it talks aboutpowers of attorney.
It could be in the power ofattorney itself.
I know that's how we draftours, is say, hey, if a
guardianship proceeding is everbrought, we'd like the people
here named, you know, my agentas my guardian, if the court's
going to appoint one.
And then in chapter um uh 32 uhof the North Carolina general

(07:36):
statutes, you have um also, orI'm sorry, 35A, which deals with
uh gardenships.
You have also, you know, youmay not even meet the definition
of incompetent if you do have atrusted individual in place
under a valid power of attorney.
So, like you're saying, theymight even dismiss the
guardianship.

Greg (07:56):
Phenomenal.
Now, I know we've all of ourattorneys, you especially, have
been in some really highlycontested and conflicted
guardianship cases.
And when we say that, we meanour client isn't the only one
pursuing guardianship.
There's other party, anotherparty or multiple parties that
have also filed petitions ormotions to intervene and have

(08:19):
been accepted into the case andare fighting for who should be
the guardian over a sibling ormom or dad, right?
That happens a lot.
So tell me about how that canbe a nightmare for a client.

Brenton (08:37):
Well, just like any other uh litigation, you have
family members opposing eachother.
Um, you know, so and it happensmore in in gardenship.
You have two parties opposingeach other, and here it tends to
be family members or lovedones, and so it can be nightmare
from that perspective becausethere's a lot of history there,
and all of that dirty laundry isgoing to be aired out in front

(08:57):
of the court, like it or not,because the court is tasked with
determining who should be theguardian, who should be put in a
trusted position over thisindividual.
And so that can make itincredibly difficult for clients
or people who participate inthat, you know.
And the other thing is that ifthe court sees that the family
can't get along, even if they dofind that one or more people

(09:20):
would be suitable to act asguardian, the court is probably
gonna split the proverbial baby,right?
Pull the King David and say,look, we do not feel comfortable
appointing somebody, eventhough they may be fit, that's
not gonna get along with therest of the family, that might
block visitation, that might beacting in a way to keep other
family members from seeing thisperson.

(09:41):
So what we're gonna do is goahead and appoint a third-party
independent attorney as guardianover the estate and DSS is
guardian over the person.
And then the family doesn'thave any meaningful
decision-making power over thatindividual, and you have to rely
on strangers to act in theirbest interest.

Greg (10:00):
So that was the fourth nightmare, is out of those
highly contested hearings, thelikely result is many times
somebody who's not a familymember is going to be appointed
by the court to be over thatperson.
Right.
And a McIntyre Elder Law, wecan help you avoid the

(10:20):
nightmares and guardianship byputting proper estate planning
in place ahead of time.
And while nightmares aren'treal because you can wake up for
them from them, we can help youalso navigate those hearings
and take a lot of the pain outof those situations by handling

(10:41):
those in your best interest,advising you, and then going to
court and arguing on yourbehalf.
So we do all those things on adaily basis, and we have highly
trained and experiencedattorneys that handle those
cases for our clients.
Thank you, Brenton, fordiscussing the guardianship
nightmares today and forflushing those out.

(11:04):
And stay tuned for the nextElder Law report.
We'll we'll bring you someadditional great legal
information and insight on thepractice surrounding estate
planning, elder law, probate,trust administration, and
litigation surrounding all thosetopics.
Thank you, Brenton.
We'll see you next time.
All right.
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