Guide to Guardianship and Incompetency Proceedings in North Carolina
This is a general overview of when a guardianship or incompetency proceeding may be necessary, and a summary of the process.
WHAT IS GUARDIANSHIP?In North Carolina, guardianship is a legal relationship in which someone (the guardian) is authorized by the clerk of superior court to be decision maker for an incompetent adult. In order for a guardian to be appointed to make decisions for someone, that person must first be found by a clerk to be legally incompetent. This is known as adjudication, which just means it was determined in a court proceeding. The legal definition of incompetence means an adult is unable to manage his/her own affairs, or is unable to make important decisions concerning himself/herself, family, or property.
Guardianships are necessary for incompetent adults age 18 and up. For persons under age 18 who are incompetent, their parent(s) serve as guardian(s). Once a person turns 18 however, they have authority to manage their own affairs and make important decisions about where they live, what medical treatment they receive, and how to manage their finances. When a person's condition renders them incompetent however, a guardian needs to be appointed to handle the incompetent person's affairs for them.
Common situations and conditions that may lead to incompetency are mental illness, mental disabilities, dementia, Alzheimer's disease, psychological and psychiatric disorders, bipolar/manic-depressive disorder, schizophrenia-paranoia, intellectual or developmental disabilities, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, comatose, cognitive impairment, or similar cause. There is no conclusive list of diseases or conditions that would render a person incompetent - every person is affected by these diseases and conditions differently. Just because a person has one of these conditions does not necessarily mean that they are legally incompetent or require a guardianship.
WHEN DOES SOMEONE NEED A GUARDIANSHIP?When a person who has not yet turned 18 is in a condition such as those set forth above, a petition for guardianship can actually be brought once that person is 17 1/2 years old. This is to ensure that there is a guardian appointed by their 18th birthday, so there is no issue with lag time between turning 18 and having a guardian appointed.
In older adults, deciding when is the right time to file for guardianship may be far more challenging. When seniors show signs of dementia, Alzheimer's, senility, memory loss, or other cognitive impairment, it often tough to parse out what might just be old age or forgetfulness and what might be signals of something more serious. It is very common for families to wait longer than they should to begin the guardianship process with a parent or family member exhibiting these symptoms.
In considering seeking guardianship, it is helpful for someone who knows the potentially incompetent person well to consider and answer capacity questions regarding various areas of the person's life. These same capacity considerations and questions are more or less covered in the Petition for Appointment of Guardian (which is required to be filed to begin a guardianship proceeding), addressed by the Guardian Ad Litem (court-appointed attorney who speaks with the ward and those close to them), and presented to the Court at the hearing. The responses to these questions are helpful in gathering information that will assist 1) loved ones in deciding whether a guardianship is needed, and 2) the Court in determining what, if any, rights, powers, and privileges the ward can retain under guardianship or limited guardianship (explained below).
All areas of these capacity questions may not pertain to each potentially incompetent person. It is very common for a person to have the ability and capacity to read, write, and speak clearly, however the contents of their communications are the concern. Maybe they start talking about something that occurred decades ago, or they ask about a loved one that passed away long ago as if that person were still alive. Maybe they ask the same questions or tell the same stories repeatedly without realizing it. Perhaps they simply do not have enough understanding or insight into their own condition to keep themselves safe. The capacity questions are often a piece of the puzzle. There could be, and typically is, other pertinent information relevant to the incompetency and guardianship process that is outside of these questions.
WHAT ARE THE TYPES OF GUARDIANSHIP?For adults, there are three types of guardians:
1. Guardian of the Person - A guardian of the person makes decisions about medical care, education, and residential placement.
2. Guardian of the Estate - A guardian of the estate handles money or property decisions.
3. General Guardian - A general guardian is both a guardian of the person and of the estate.
A guardianship may be limited to allow the incompetent adult to retain his decision-making authority if he is competent to make decisions in one or more of the major areas of his or her life, such has the right to vote. This is referred to as a Limited Guardianship, with a guardian still being appointed to manage certain affairs or make decisions in certain areas of the person's life.
WHAT ARE THE RESPONSIBILITIES AND POWERS OF GUARDIANS?People often want to know what the duties will be once they, or someone else, are appointed guardian of an incompetent adult. Being guardian does require guidance, and it is common for questions to arise. This is a general overview for informational purposes and is not an exhaustive list. Contact guardianship attorney Elspeth Crawford Long should you have any legal questions about the role of a guardian.
Generally, the Guardian must:
1. Ensure that the loyalty and duty of the guardian are to the "actual" needs of the ward.
2. Make decisions that ensure the health and well being of the ward.
3. Involve the person in all decision-making to the extent possible, consistent with the ward's ability.
4. Ensure that the need for guardianship is periodically reviewed and alternatives, including restoration to competency or limited guardianship, are considered.
All guardians are bound by the law and must abide by their fiduciary duties to protect the interests of the ward. Specific duties of a guardian depend on what type of guardianship (i.e., estate, person or general) was created.
Miscellaneous responsibilities of guardians include promptly notifying the clerk if the guardian changes his or her name or address, or if the residence of the ward changes.
Specific duties of guardians are outlined in the statutes. The Administrative Office of Courts has published a booklet to assist guardians called Responsibilities of Guardians in North Carolina that is an excellent source of information about the rights and responsibilities of guardians.
WHAT IS THE PROCESS FOR GUARDIANSHIP?A guardianship case starts with the filing of a Petition. The Petition itself has certain requirements in accordance with North Carolina statutes. Although the guardianship statute allows "any interested person" to file for guardianship, typically family members, care providers, or social workers will be filing.
The person who files the petition is called the petitioner. The person who is alleged to be incompetent in the petition is the respondent. A common question is "If I file the Petition, do I have to serve as guardian?" - the answer is NO! You do not have to serve as guardian just because you filed the Petition. Likewise, you do not have to serve as guardian if you do not want to or are unable to. While it is preferable to have someone who knows the respondent well, if there is no one who can act as guardian, you can request a public guardian be appointed.
Often people choose to hire an attorney to prepare the Petition properly. If you have questions about a guardianship petition or initiating a guardianship proceeding in general, contact attorney Elspeth Crawford Long.
The Petition must be served on the Respondent, and all next of kin of the Respondent. Next of kin would include children, siblings, and parents. If there are none, then next of kin includes the next degree, such as grandchildren, aunts, uncles, cousins, nieces, nephews, and grandparents.
When you file the petition, you will be given a court date and the name of the Guardian ad Litem. The Guardian ad Litem is an attorney appointed to represent the interests of the respondent. Other family members or interested persons may also attend the guardianship hearing or provide information. The Clerk of Court (or an Assistant Clerk of Court) is the finder of fact who determines whether the respondent is incompetent and appoints a guardian. He or she can also issue other orders such as order to release medical records or for a special evaluation of the respondent called a multi-disciplinary evaluation. Sometimes other family members or the respondent hires an attorney to advocate for their position.
You should call the Guardian ad Litem to provide him or her with information about the respondent. He or she will visit with the respondent to determine their needs and wishes. If the respondent is living with you, you may need to arrange for the Guardian ad Litem to meet with the respondent. You should ask the Guardian ad Litem to let you know what his or her recommendation will be. If he or she says the respondent does not seem to need a guardian, you will need to prepare your evidence for the hearing.
WHAT WILL THE GUARDIANSHIP HEARING BE LIKE?Guardianship hearings can be informal, especially if everyone involves believes a guardianship is necessary. Guardianship cases can also be highly contested and emotional. Every single case is different.
At the hearing, the Petitioner is required to present evidence as to 1) why they believe the person is legally incompetent and cannot manage their own affairs, 2) what type of guardianship they believe is necessary, and also on 3) who they recommend be appointed as Guardian to make decisions concerning the Respondent's person and property.
Even if you are not an attorney, you will still be required to follow the same rules that attorneys follow including the rules of evidence. You may be required to subpoena witnesses and medical records, present the testimony of your witnesses through questions (called direct testimony), ask the respondent's witnesses questions, and so forth. The proof you must have in a guardianship case is higher than most civil cases.
The Clerk or Assistant Clerk will hear the Guardian ad Litem's report (a written report will be provided to the court), hear any testimony and argument, and determine if the respondent is incompetent. If the clerk finds that the respondent is incompetent, he or she will prepare a written order saying the respondent is incompetent, and appoint a guardian. The guardian will go with the Clerk or Assistant Clerk to the Estates division to complete paperwork and be sworn in as guardian. The guardian will take an oath and post a bond if necessary. Finally, the guardian will be issued Letters of Guardianship.
TERMINATION OF GUARDIANSHIPIf a person under guardianship no longer needs the guardianship, or the guardian is unable to continue serving as guardian, then the guardian or any other interested party can file a motion to modify the guardianship. Once again, a Guardian ad Litem will be appointed to determine what the respondent needs and wants, and will make a recommendation to the Court. The various scenarios that terminate guardianship are outlined below.
1. Resignation or Death of Guardian
(a) Resignation - A guardian who wishes to resign, must petition the Clerk of Superior Court for an order authorizing the resignation. [G.S. 35A-1292] The clerk may approve the resignation upon approval of a final account.
(b) Death Upon the death of a guardian, the clerk will appoint a successor guardian following the same procedure for the initial appointment. [G.S. 35A-1293]
(a) Mandatory - The clerk must remove a guardian or take other action when the guardian has been adjudged incompetent, has been convicted of a felony, was initially unqualified, fails to renew a bond, fails to file accountings, fails to obey any citation, notice or process served on the guardian or the guardian's process agent, or the clerk finds the guardian to be unsuitable to continue serving. The complete listing of bases for mandatory removal is found at G.S. 35A-1290(c).
(b) Discretionary - The clerk may remove a guardian or take other action when the clerk determines that the guardian has mismanaged or wasted the ward's money or estate, neglected to provide care for the ward, violated a fiduciary duty or has become insolvent. The complete listing of bases for discretionary removal is found at G.S. 35A-1290(a) and (b).
(c) Emergency - The clerk may remove a guardian without a hearing upon finding reasonable cause to believe an emergency exists that threatens the well being of the ward or the ward's estate.
(d) Interim Orders - When a guardian is removed the clerk may make such interim orders as the clerk finds necessary for the protection of the ward or ward's estate.
3. Restoration to Competency - When a ward's competency is restored (See, Restoration below) the guardianship shall terminate and a final accounting must be filed within sixty (60) days. [G.S. 35A-1295]
4. Death of the Ward - Upon the death of the ward, guardianship shall terminate and a final accounting must be filed within sixty (60) days. [G.S. 35A-1295] Any remaining assets of the estate must be paid to the personal representative of the estate of the deceased ward and a receipt should be obtained from the personal representative and filed with the final accounting in the guardianship.
5. Minor Reaches Majority - When a minor ward reaches 18 years of age (or is sooner emancipated by marriage or court order) the guardianship shall terminate. [G.S. 35A-1295, 1202(12)] The guardian shall file a final accounting with the Clerk of Superior Court within 60 days of the termination. Any remaining assets of the estate must be paid to the former minor and a receipt should be obtained from the former minor and filed with the final accounting in the guardianship.
RESTORATION TO COMPETENCY1. Petition - A guardian, ward, or other interested person may file a petition (as a motion in the cause) with the Clerk of Superior Court for partial or full restoration of the ward's competency. The petition must be served on the ward and guardian. There is no AOC form for this proceeding. No petition or proceeding is required for a minor reaching the age of 18.
2. Hearing - The clerk will schedule and hold a hearing to consider evidence of the ward's competency.
3. Guardian ad litem or attorney - The ward is entitled to be represented at the hearing by an attorney or the clerk will appoint a guardian ad litem attorney.
a. Full restoration - If the clerk finds by a preponderance of the evidence that the ward is competent, the clerk will enter an order restoring the ward to competency. The ward may then handle his or her own affairs and enter into contracts as if he or she had never been adjudicated incompetent.
b. Alternative to full restoration - If the clerk finds that the ward is able to make some of his own decisions, the clerk may enter an order changing the guardianship to a limited guardianship. A limited guardianship permits the ward to have input into or to make certain decisions, such as housing and medical care, as designated by the clerk.
c. Against restoration - If the clerk finds there is insufficient evidence to restore the ward's competency, the clerk will enter an order to that effect. The guardian of the ward will continue to serve. [G.S. 35A-1130]