An Overview of Guardianship and Incompetency Hearings in North Carolina
Guardianship is the legal relationship created by a court granting a person, the guardian, the power to make personal or financial decisions for another person, the ward. If your loved one is beginning to show signs of mental illness or is unable to make decisions regarding their person or property, you may petition the Clerk of Superior Court in your county for Guardianship of that person. Incompetency is a serious matter, because an adjudication can result in the loss of a person’s ability to make decisions affecting their everyday life.
Ideally, you should aim to avoid this proceeding because the result may not be what you or your loved one would prefer. However, sometimes a mental illness or mental disability can set in without warning. A guardianship proceeding may be prevented by signing a durable or springing power of attorney. Either of those documents will state who has the legal authority to make decisions on your behalf should you become unable to make decisions affecting your person or property. Of course, you must be legally competent to sign a power of attorney.
An adult is incompetent if they lack sufficient capacity to manage his or her own affairs or to make or communicate important decisions concerning his or her person, family or property. G.S. §35A-1101(7). An incompetent child is a minor who is at least 17 1/2 years of age and who, other than being under the age of 18, lacks sufficient capacity to make or communicate important decisions concerning the child’s person, family, or property. G.S. §35A-1101(8). The court allows you to petition for guardianship of your child at 17 1/2 years of age so there is no lapse in care for your child when they turn 18.
Most petitioners are parents, siblings, and family members of the respondent. Courts typically do not grant joint Guardianship simply for the practical reason that it’s easier for one person to make a decision rather than two. However, if one parent is applying for the guardianship of their child, the Court will inquire as to how decisions are made in the family and how disagreements are handled. If your child has a mental disability that prevents them from making decisions about their person or estate, you may file a petition for guardianship six months before they turn 18.
A guardianship proceeding begins when you, the petitioner, file a form with the Clerk of Superior Court seeking the appointment of a guardian and an adjudication of incompetence regarding your loved one, the respondent. Immediately, the Court will schedule a hearing (typically within 30 days) and appoint a Guardian Ad Litem. The respondent may hire their own attorney to represent their wishes, at which point the Guardian Ad Litem might be dismissed. However, the respondent is usually unable to retain their own attorney. The respondent has a right, upon a personal request, their counsel, or Guardian Ad Litem to a trial by jury. Failure to do so is a waiver of the right, but the Clerk may require a jury upon his own motion.
The Guardian Ad Litem will investigate the facts of the case and report to the court both the best interests and express wishes of the respondent. The four main questions the Guardian ad Litem will investigate are:
- Is the Respondent incompetent?
- If the Respondent is incompetent, should there be a “full" guardian or limited guardianship?
- Does the Respondent have any income or assets?
- Who should be the Guardian(s)?
Regarding incompetency, the Guardian Ad Litem will look to see what the diagnosis is of the Respondent. The diagnosis may be from a long standing permanent mental illness or a mental condition caused by illness or an accident. The Guardian Ad Litem will then investigate to determine if a full or limited guardianship is appropriate. A “General Guardian" has the authority to make decisions about the ward’s personal care and their financial affairs. A limited guardianship may be granted either in the form of “Guardian of the Person" or “Guardian of the Estate." A Guardian of the Person has the authority to make decisions regarding the ward’s personal care, medical and psychological treatment, education, and employment. A Guardian of the Estate has the authority only to handle the ward’s financial affairs and assets. If you are the payee of your loved one’s social security benefits, being appointed Guardian of the Person will not affect your status as payee.
The Guardian Ad Litem will then investigate what income and/or assets the ward has and who should be the Guardian. If your loved one’s mental illness or condition occurred later in life, they may have real estate, savings accounts, pensions, and/or vehicles that need to be managed and maintained. A General Guardian or Guardian of the Estate is responsible for the preservation, management and use of the ward’s estate in the ward’s best interests. The appointment of a Guardian of the Estate is taken very seriously by the court and mismanagement of the ward’s property and assets will likely sway the court from appointing the petitioner to be General Guardian. Instead, the court may appoint you only as a Guardian of the Person.
At the hearing, the Clerk or jury, must find by clear, cogent, and convincing evidence that the respondent is incompetent. This standard is a very high bar to meet. The petitioner and respondent may present their case through testimony and documentary evidence, and examine and cross-examine witnesses. If the Clerk or jury does not find that the respondent is incompetent then the matter is dismissed and does not proceed any further. If the respondent is found incompetent then the Clerk will appoint a guardian and make a decision as to the limitations, if any, of the guardian. The Clerk typically gives great weight to the recommendations of the Guardian Ad Litem.
If your child, parent, sibling, or loved one is showing signs of mental illness or is diagnosed with a mental condition that prevents them from making or communicating decisions about their person or property, you should begin guardianship proceedings to ensure their care and comfort. The Piemonte Law Firm is experienced in Guardianship proceedings and can help represent and guide you in these complicated and stressful hearings so your loved one can get the care they need.