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Guardianships & Incompetency Proceedings in NC

In October 2020, as we launch our second office presence in -- Cary (Wake County), North Carolina -- I was ecstatic to have been appointed by the Wake County Courts as one of the small handful of Guardians Ad Litem (GALs) for adult-incompetency proceedings in Wake County. After almost ten years of serving in Mecklenburg County, I am excited to be able to serve adults struggling or unable to manage their own affairs in Wake County now, as well.

So what is an incompetency proceeding or guardianship? Governed by Chapter 35A (with interstate jurisdictional issues addressed in Chapter 35B) of our General Statutes, an adult can be adjudicated "incompetent" (yes, the legislature could find a far more sensitive term -- but this is the legal-term that exists for now) if the Court determines he or she is "lacks sufficient capacity to manage the adult's own affairs or to make or communicate important decisions concerning the adult's person, family, or property . . ." N.C.G.S. 35A-1101(7).

In the Guardianships chapter I wrote for the North Carolina Fiduciary Litigation Manual (available from the North Carolina Bar Association web site), I explained that this appears to be a two-part test, and that an adult can be incompetent if he or she either: (1) lacks sufficient capacity to manage their own affairs; or, (2) lacks sufficient capacity to make or communicate important decisions . . .

When do incompetency proceedings arise? Generally, in four scenarios: (1) an older adult suffers from dementia or other diminished mental capacity that renders them either unable to safely manage their health, financial, or living arrangements (or renders them vulnerable to neglect or exploitation); (2) an adult, of any age, suffers from any mental or cognitive disability (or, more sensitively described, "non-neurotypical") that impacts their ability to manage their own affairs (such as, but not limited to, severe autism); (3) an adult suffers from addiction or mental illness that is so profound that they are rendered unable to manage their own affairs; or, (4) an adult suffers a brain injury or other incapacitating incident.

Adults who fit these scenarios can often have their needs met with proper prior planning, in the form of a power-of-attorney and health-care power-of-attorney, in which the adult - while they had competency - granted power to an agent to act on their behalf. When adults did not have the opportunity to perform such prior planning prior to becoming incapacitated, or when concerns arise about the conduct of the agents they selected, guardianships can ensue. (Of course, some adults -- such as those born non-neurotypical -- may never have had an opportunity to execute such planning documents.)

Any person can file a guardianship proceeding, which commences with the filing of an AOC-SP-200 ("Petition") and an AOC-SP-201 ("Notice of Hearing") form. After the proceeding is commenced, every adult who is the subject to that petition (known as the "respondent," at this phase) is appointed a Guardian ad litem pursuant to N.C.G.S. 35A-1107. That GAL (who, in these cases, must be an attorney -- in contrast to child-welfare cases, where a well-trained non-attorney volunteer can serve) is charged with two duties: (1) helping the respondent adult express their wishes and preferences, if any, to the Court; and, (2) making independent recommendations about the best interests of such respondent-adult.

At hearing on the matter, the Petitioner has a burden of proving their case by "clear, cogent and convincing evidence." N.C.G.S. 35A-1112(d). (In some emergency instances, an interim guardian or guardians can be appointed. N.C.G.S. 35A-1114.) If the adult is adjudicated incompetent, then in almost all cases a Guardian of the Person ("GOP") is appointed to take "custody" of the adult and "make provision for [the adult's] care, comfort, and maintenance" including arranging housing, medical care, and the like. N.C.G.S. 35A-1241. For adults who have financial assets ("estates") requiring management, a Guardian of the Estate ("GOE") is also appointed, who has authority to manage those financial and legal affairs. N.C.G.S. 35A-1251. (If an adult's only assets are government benefits that can be assigned to a "representative payee," a GOE is likely unnecessary.) When the same individuals acts as both GOP and GOE, they are referred to as the "General Guardian."

If you have a loved one in need of a protective proceeding such as this, do not hesitate to reach out and we would be happy to discuss whether guardianship may be appropriate. For additional reading, the NC Fiduciary Litigation Manual is available for purchase at the North Carolina Bar Association site.


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