NC Incompetency and Guardianship Proceedings

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