High Point, NC asked in Family Law for North Carolina

Q: I am the oldest of four adult children to two divorced parents. Am I their closest next of kin?

And can my younger sister who is a RN automatically gain POA or guardianship without the other older siblings input?

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2 Lawyer Answers
Sara W. Harrington
Sara W. Harrington
Answered
  • Chapel Hill, NC
  • Licensed in North Carolina

A: You and your siblings are equally related to your parents.

Determining who is given a power of attorney is determined by the person over whom the power will be exercised, if that person is competent and over 18.

If the person is believed to be incompetent and has no durable power of attorney (to handle the person's financial affairs) or health care power of attorney (to handle medical care), then any person, including any state or local human services agency or healthcare provider (through its authorized representative) may petition the Clerk of Court for guardianship. The person for whom you are petitioning for guardianship is entitled to be represented by counsel of his own choice or by an appointed guardian ad litem.

Petitioning for guardianship should be a last resort. I advise you to talk with an attorney in your area before you take any action.

Kelli Y Allen
Kelli Y Allen
Answered
  • Charlotte, NC
  • Licensed in North Carolina

A: If your parents are mentally competent, advise them to speak with an elder law attorney to discuss preparing a Durable Financial Power of Attorney and a Healthcare Power of Attorney. The Durable POA will allow each of them to appoint one or more individuals (agents) who would have the authority to handle issues such as banking, insurance, real estate, legal, tax, etc. on their behalf if necessary. The Healthcare Power of Attorney designates the person who has authority to make medical decisions on their behalf if they become unable to communicate with the doctor and express their own wishes.

Without these documents, your parents run the risk of having the court decide who will have this authority.

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