Can I make a will if I am under guardianship?

On Behalf of | Jun 16, 2023 | Estate Planning

Each person has needs based on their life situation, physical health and mental wellness. Sometimes, the court could deem an individual incapacitated, necessitating legal guardianship. Individuals under guardianship underwent standard procedures to determine if they cannot oversee vital matters, including their health, family and property.

Their incompetence usually arises from various conditions, such as mental disorders, disabilities, epilepsy, cerebral palsy and other health problems that might cause severe impairments. Considering these circumstances, it could be unclear whether a ward can make a will. In North Carolina, the law allows them to retain their right to decide on specific matters, including drafting a will.

However, the process to do so might be more complicated based on the ward’s circumstances. Even if the guardian can make legal decisions regarding the ward’s financial assets, they might still need approval from the court. Sound legal advice could clarify the details when a ward wishes to draft a will or use other estate planning tools.

Other rights retained under guardianship

Aside from making a will, a ward retains other rights, including participation in decision-making procedures that could impact their circumstances. Additionally, they retain their right to marry and vote. They also have the right to take legal action, such as motions or appeals, regarding the details of their guardianship. They could also seek representation for these proceedings.

Less restrictive alternatives

Guardianship is never the court’s first option. The law considers alternatives if the individual is still capable. The law favors other options, such as powers of attorney, special needs trusts, home health care, regulated bank accounts and payee systems. These methods could give an individual more freedom. Still, restrictions could depend on the situation and the court’s decision on what is best for the individual.