Guardianships for Adults
An Incompetency proceeding for adults is a formal legal proceeding whereby a party petitions the Court to declare someone Incompetent and asks the Court to appoint a person, or entity, to be the Guardian of that person. Typically, these types of hearings are presided over by an Assistant Clerk of Court in the county where the action is filed. There are three types of Guardianship which are discussed in more detail below.
Who may file an Incompetency petition in North Carolina?
Any person, state agency, or healthcare provider may file an incompetency petition in North Carolina.
An Incompetency proceeding begins by a person filing a Petition to have an individual Respondent declared incompetent. The Petitioner must show that the Respondent meets the definition of a protected person by clear and convincing evidence. If the Court finds that the Respondent is not incompetent, the case is dismissed and nothing further happens. If the Court finds that the Respondent is incompetent, then the Court shall appoint a Guardian for the Petitioner.
There are three (3) different types of Guardianship: (1) Guardian of the Person, (2) Guardian of the Estate, or (3) General Guardian.
A Guardian of the Person is an entity that serves to make sure a Respondent has their day-to-day needs met. This includes, but is not limited to, getting food/medicine, getting to the doctor, help with personal hygiene, and other tasks of daily living.
A Guardian of the Estate is tasked with managing the financial affairs of the Respondent and making sure their bills and other matters are being paid.
A General Guardian is an entity that performs the tasks of both a Guardian of the Person and a Guardian of the Estate.
The official presiding over these hearings must listen to the evidence presented and determine what type of Guardianship is best suited to the situation and tailor an Order to fit the circumstances. The Court is directed to make any Guardianship the least restrictive as possible under the circumstances. Therefore, a person with only physical limitations may not need a person to help them with their financial affairs.
Who can serve as a Guardian?
North Carolina has a statutory priority of who it will give preference to when appointing a Guardian. North Carolina prefers to appoint individual adult Guardians with some familiarity with the incompetent; however, sometimes such persons are not available in each case. If no such person is available, the Court looks to appoint a corporation that has experience serving as a Guardian as the next candidate. If neither of those options exist, the Court may appoint a local social services agency to act as a Guardian.
At Garrett, Walker, Aycoth & Olson, our guardianship attorneys are here to help with all of your guardianship needs. Contact our attorney in Greensboro today.