When an adult family member or loved one is suffering from a serious illness, condition, physical or mental impairment that prevents that person from managing their own affairs, action may need to be taken to protect their well-being. One possible solution may be petitioning for guardianship of the individual. If a guardian is appointed for an adult who is deemed incompetent, the guardian appointed has the legal authority to make decisions on the incompetent’s behalf to ensure their personal well-being and/or estate (financial assets and property) remain protected. A guardianship may also be limited for a particular purpose or duration of time.
Covered under N.C.G.S. 35A (Incompetency and Guardianship), the process for petitioning and obtaining guardianship can be complex. A petition must be filed with the Clerk of Superior Court with proper notice provided to the believed incompetent person (respondent) and their known next of kin. The reasons stating the grounds for seeking guardianship must be listed along with the recommended guardian(s) for the respondent. If the petitioner believes that the respondent’s condition presents a reasonable imminent risk to their physical well-being and/or that of their estate, an interim guardian may be sought. A hearing for an interim guardian will be set as soon as possible and no later than 15 days after the respondent is served with notice of the hearing per the statute. A link to the petition may be found below.
Once the petition is filed, the respondent will be appointed a Guardian Ad Litem to represent the respondent’s interests if the respondent cannot or chooses to not hire representation. The Guardian Ad Litem will often make recommendations to the Clerk of Court overseeing the guardianship proceeding as to whether a guardian should be appointed and who that person should be.
The Clerk of Superior Court will conduct the guardianship hearing and make a determination based on whether there is clear, cogent and convincing evidence that the respondent is incompetent. This evidentiary standard is higher than that of preponderance of the evidence (used in most civil cases) but lower than the reasonable doubt standard which is used in criminal cases. During the hearing, the petitioner and respondent have the ability to present evidence and witnesses, with each side given the opportunity for cross-examination.
While this provides a brief overview of the process for filing for a guardianship, arriving at the conclusion to file for and seek guardianship can be complicated and difficult. Our attorneys can help evaluate legal options available and help chart a course of action that best addresses the issue. If you have any questions regarding petitioning for a guardianship or a related matter, please do not hesitate to contact our office and speak with an attorney.
Petition for Adjudication of Incompetence and Adjudication of Incompetence