Incompetency & Guardianship

According to North Carolina law, any adult or emancipated minor who lacks sufficient capacity to manage their own affairs or to make or communicate important decisions concerning their 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, is considered Incompetent. Many people are very reluctant to pursue Incompetency of a loved one for fear that a stigma may attach to the person, but they fail to consider the protections of State Incompetency laws for the individual affected, especially in the areas of contracts and financial liability.

An Incompetency case is initiated by filing a Petition and Notice of Hearing with the Office of the Clerk of Superior Court for the County in which the alleged Incompetent person resides. In the event the person resides in a facility located in a county other than that in which they lived prior to entering the facility, and they did not themselves, choose to move out of the county of residence, the Petition may be filed in the county in which they lived prior to entry into the facility.

Upon filing, the Clerk’s office will set a date for Hearing the Petition and will appoint a local attorney as Guardian ad litem or g.a.l. (essentially a nominal guardian for the time the case is pending). The Respondent, that is, the person you allege is Incompetent, as well as the g.a.l. must be served with copies of the Petition and Notice of Hearing. In addition, all members of the immediate family and any witnesses you intend to call need to be served copies of the Petition and Notice of Hearing as well.

The guardian ad litem will interview the Respondent as well as any other possible witnesses, assist with obtaining medical records and other evidence, and report their findings to the Court at the Hearing on the Petition. It is important to note that the Respondent is not required to be at this Hearing and even if they are present, oftentimes they will be unable to communicate their concerns to the Court. For these reasons, it is very important that their interests be represented and protected by the g.a.l.

In Mecklenburg County, the Hearing is a rather informal matter, which is held in a private conference or Hearing room located within the Clerk’s offices. Don’t mistake the lack of formality for a lack of concern for the Respondent though. The Clerk of Court or their designated Assistant, who presides over the Hearing, will be very interested in the evidence presented and if it isn’t sufficient, the petition will be denied. In Counties surrounding Mecklenburg, the procedure varies, with some Clerks of Court going as far as to require a Hearing before a jury in order to have someone declared Incompetent.

Once the Hearing is over, the presiding official will determine whether the Respondent is Incompetent and if so, to what extent, and will inquire as to who should be appointed Guardian for the Respondent. There are three types of Guardianship:

  1. Guardian of the Person: This person is issued Letters of Appointment as Guardian of the person and is legally responsible for the physical person of the Respondent, who is now considered their Ward. This means that the Guardian of the person, or GOP, has the legal responsibility to determine, among other things, what healthcare the Ward will receive, where they will live, who will reasonably have access to the Ward, etc.
  2. Guardian of the Estate: This person is issued Letters of Guardianship of the Estate of the Ward and is legally responsible for all things financial concerning the Ward. This includes, but is not limited to, the acquisition and control of any and all assets of the Ward, pursuit of any claims the Ward may have, such as a personal injury or contract action, obtaining public benefits for disability, filing any tax returns due, etc. Once this type of Guardian has control of an asset, they are responsible for managing the asset in accordance with the best interests of the Ward and making sure they care for all the Ward’s necessities, in cooperation with the Guardian of the Person.
  3. General Guardian: This person is issued Letters of General Guardianship and is responsible for all of the above duties of both the person and estate of the Ward.

The Guardian of the Estate and the General Guardian are responsible for reporting on a regular basis to the Court, the exact status of the estate of their Ward, including the amount and source of all assets collected, the amount paid and payee for all funds disbursed, and the exact location(s) of all retained assets, as well as the current value of each. These reports are required on a schedule similar to that of Decedent’s Estates in that an initial Inventory is due within ninety days of issuance of the Letters and on each annual anniversary of issuance of the Letters. There is never a need for the filing of a Motion for Extension of Time to Complete the Administration, because a Guardianship of the Estate typically lasts until the estate runs out of assets to administer, the Ward passes away or until the Ward is re-instated to competency.

Many people feel uncomfortable with limiting the rights of others, are intimidated by the plethora of unfamiliar rules and procedures and are often experiencing discord within a family regarding what is best for the alleged Incompetent. These are just some of the reasons why someone would consult a qualified attorney before proceeding with this type of action. I have handled well over a hundred Incompetency’s and Guardianships and would be happy to discuss your particular situation whenever the need arises.


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