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
- One who serves as both guardian of the person and guardian of the estate
- Must be NC resident.
- 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
- 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
- Serve as witness in a legal proceeding
- Execute a will
- 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
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