NC Incompetency and Guardianship Proceedings
This is a basic outline of initial procedures and considerations in an incompetency and guardianship proceeding in North Carolina. Such proceedings are necessary when an adult can no longer care for or make decisions for himself or herself and there are no feasible alternatives in place.
Petition for Adjudication of Incompetence is filed with the Clerk of Court.
- Anyone can file the petition.
- Must be served on the respondent.
- The Clerk appoints a local attorney as guardian ad litem (GAL) for the respondent.
The GAL represents the respondent, investigates and reports to the Clerk about the respondent’s condition. - The respondent may retain his or her own counsel, in which case the Clerk may then dismiss the GAL.
- Any party can request a multi-disciplinary evaluation.
A hearing is held before the Clerk.
- The respondent may request a jury.
- Evidence is presented regarding the respondent’s condition and situation, by testimony and certain documents.
- The Clerk or jury must find by clear, cogent and convincing evidence that the respondent is incapable of managing his or her affairs.
- NC law defines an incompetent adult as one “who lacks sufficient capacity to make or communicate important decisions concerning the adult’s person, family, or property whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition.”
Once the respondent is found to be incompetent, a guardian is appointed.
Order of priority:
- Individuals (usually family members)
- Authorized corporations
- Disinterested public agencies (state or local human services agency)
Types of guardians:
Guardian of the Estate
- manages the ward’s property
- Bond is required
- Annual Accountings required
- Must be NC resident
Guardian of the Person
- Makes decisions about the care, custody and control of the ward (e.g., residence, health care)
- No bond or accountings required
General Guardian
- One who serves as both guardian of the person and guardian of the estate
- Must be NC resident.
Interim Guardian
- Appointed by the Clerk prior to the hearing on the adjudication of incompetence when there is imminent danger to the ward or his or her assets
Powers and Duties of the Guardian
- Provide for the care of the ward
- Manage the ward’s property
- Commence or defend legal action on behalf of the ward
- Arrange for and consent to medical, psychological, legal and other treatment or services
Must act in the ward’s best interest
Rights terminated by guardianship
- Contracts
- Jury service
Legal action (independent) - Drive a vehicle
- Associate freely with others
- Avoid involuntary commitment (different standards apply)
- Decide about own medical care
North Carolina Guardianship Proceedings (continued)
Rights retained by the ward
- Marry
- Divorce
- Vote
- Serve as witness in a legal proceeding
- Execute a will
Limited Guardianship
- If the ward is able to function with regard to certain decisions and activities, the Clerk may impose a limited guardianship
- The guardian’s authority is limited and the ward’s powers retained with respect to those functions
- It is important to preserve as many rights as possible for the ward, if feasible
Removal of Guardian
- A guardian may be removed for not protecting the ward’s interests and for certain other reasons
Restoration of Competency
- Ward may petition the Clerk at any time
- Hearing similar to initial hearing
Alternatives to Guardianship
- Powers of Attorney - written authorization given by a competent person for someone else to act on his or her behalf. Durable – remains effective after incapacity
- General Power of Attorney - for finance, legal, property matters. Must be filed with Register of Deeds in event of incapacity
- Health Care Power of Attorney - or medical and mental health decisions. Strict statutory requirements.
Trusts - Trustee manages assets and distributes income and principal for benefit of incapacitated beneficiary
Representative Payee
Receives and uses governmental benefits on behalf of incapacitated person
Advance Instruction for Mental Health Treatment
Statement of one’s wishes for mental health treatment or refusal of treatment
I think this is analogous to a conservatorship of the person or estate proceeding in CA?
In CA it is often the only means of proactively addressing financial elder abuse, since children don't have standing to bring an elder abuse lawsuit unless they get appointed conservator. Is the situation similar in NC?
RESPONSE: The answer is yes to both questions.
What are provisions for possibly overriding the parent involved with an adult child whose substance abuse is endangering her life? I am the sister. My mother's codependency and financial support of my sister is now immediately risking my sister's life. Sister is in NM; mother and I are in NC.
RESPONSE: Since your sister lives in NM, you will need to consult with an attorney there about the possibility of filing a guardianship proceeding.
can wake co. human services keep a person adjudicated incompetent from attending her own hearing for guardianship?
RESPONSE: If the person has already been adjudicated fully incompetent, I would say yes.
can an incompetent person fire her gal.
RESPONSE: Only if she hires an attorney to represent her.
Can more than one person be someone's guardian? Our 18 y.o. daughter has severe multiple handicaps and I'd like for my husband, my adult daughters, and me to be her legal guardians.
If she has no property or money (other than very small summer paychecks from a sheltered workshop), does she need a guardian of the estate?
RESPONSE: I have never heard of more than two guardians being appointed. If you are able to somehow cash the paychecks and use the money for her benefit then she probably doesn't need a guardian of the estate. Make you have have set up a trust for her in the event you and your husband die.
It is my understanding that North Carolina has not adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdictions Act (2007).
Does North Carolina have its own procedure in place to transfer an already existing North Carolina general guardianship to another state?
RESPONSE: No - it's actually the law of the other state that would dictate the transfer.
I understand I must file a 90-day report of the income/expenses of my ward, and a 12 month report. Is there a specific form for completion....if so, how do I get it?
RESPONSE: The 90 Day Inventory lists only assets, not income or expenses. Those are listed on the Annual Account, which is due each year. The forms are available on the website of the NC Administrative Office of the Courts.
Has North Carolina adopted the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act? If so, when?
RESPONSE: No.
if you have guardianship over an adult deemed incompetent, do you still need a power of attorney?
RESPONSE: No, but practically it's not possible to get one, since the incompetent person cannot legally sign a power of attorney. Powers of attorney signed when the person is competent can often avoid the need for guardianship.
What happens if someone HAS a durable power of attorney, but the person who granted it is now incompetent (not legally, but medically) and making bad decisions & the POA holders want to prevent the granter from making their own financial or other decisions anymore? Now institutions/agencies seem to be requesting documentation/statements from MD re incompetence -- so isn't this pushing into the guardianship arena?
RESPONSE: Yes. Sometimes guardianship is necessary even when powers of attorney are in place.
My uncle has guardianship, POA and is head of estate for my mother. and seems to be misusing his powers. For example, he wants to sell the house, which is paid for, that my brother lives in. Does he have the right to do so? As a 35 yr old son, I'd like to have full rights for her. How do I go about doing that?
RESPONSE: You will need to hire an attorney to attempt revoke the letters of guardianship and ask that the court appoint you.