Guardianship

The law presumes that all adults are competent and have the ability to manage their own affairs. Unfortunately, that is not always the case. When an adult is not able to make important decisions and has not properly designated a substitute decision maker, a guardianship may be required.

A court cannot appoint a guardian for an adult unless he or she has been declared incompetent. It is important to understand that while a doctor’s opinion may be critical in an incompetency proceeding, incompetency is a legal determination. Because incompetency takes away rights and limits autonomy, the law provides both substantive and procedural protections to those alleged to be incompetent. The respondent is entitled to proper notice, has a right to counsel, and may confront witnesses at a hearing. A respondent can even ask for a jury, although that is uncommon.  

The petitioner in an incompetency proceeding must prove by clear, cogent, and convincing evidence that the person alleged to be incompetent lacks sufficient capacity to manage his or her own affairs or to make or communicate important decisions about the person’s self, family, or property due to “mental illness, mental retardation or developmental disability, inebriety, disease, injury, or similar cause or condition.” In other words, making poor decisions doesn’t make a person incompetent. There must be a sufficient reason for the lack of ability to make decisions. If a person is deemed in competent, the Court will appoint a guardian. While technically a separate hearing, this is usually handled immediately after the incompetency hearing. While many incompetency and guardianship cases are straightforward, the process can also be stressful and costly. Some hearings last a few minutes and are conducted around a conference table. In other cases, family members are opposed to one another in an emotional and contentious courtroom setting.

There are three types of guardianship in North Carolina. A guardian of the person has the authority and responsibility for the care and custody of the person declared to be incompetent (now the “ward”). A guardian of the estate is responsible or the ward’s assets. These two may be combined into a general guardianship. Both a guardian of the estate and a general guardian must be bonded and must provide annual accountings.

We have handled hundreds of guardianship matters and have represented clients in all aspects of the process, from filing the initial petition through restoration of competency. We also understand the collateral effects of guardianship and the potential impact on families.