Guardianships in North Carolina

When an older person is suffering from a serious illness or impairment, whether physical or mental, which prevents that person from handling their own personal and/or financial affairs, or causes that person to be vulnerable to fraud, a court action known as a guardianship proceeding may be the best solution to address the problem and assist the impaired person. 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 his or her personal well-being and/or estate (financial assets and property) remains protected. Under certain circumstances, a guardianship may also be limited for a particular purpose or duration of time.

The process for petitioning and obtaining a guardianship is involved. A petition must be filed with the Clerk of Superior Court with proper notice provided to the proposed incompetent person, known as the “Respondent” and his or her family. The person making the application, known as the “Petitioner” must list the reasons for seeking guardianship and the Petitioner must recommend a proposed a guardian that may or may not be the Petitioner. In emergency situations when there is a reasonable imminent risk to the Respondent’s physical or financial well-being, an interim guardian may be appointed.

Once a petition is filed, a Guardian Ad Litem is appointed to represent the Respondent’s interests if the Respondent cannot or chooses not to hire his or her own attorney. The Guardian Ad Litem is appointed to look out for the best interest of the Respondent in an unbiased way. The Guardian Ad Litem will typically 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.

A hearing will be held before the Clerk of Superior Court and a determination will be made based on whether there is clear, cogent and convincing evidence that the Respondent is incompetent. During the hearing, the Petitioner and Respondent have the ability to present evidence and witnesses, with each side given the opportunity for cross-examination. Typically at the conclusion of the hearing, the Clerk of Court will make a ruling both as to the issue of competency and will appoint a guardian.

With regard to guardianships of the elderly, North Carolina recently enacted a new statute, the Uniform Adult Guardianship and Protective Proceeding Jurisdiction Act (N.C.Gen.Stat.§35B) which resolves jurisdictional issues in guardianships such as when family members in different states are each applying for guardianship in his or her own respective state and/or there is a dispute regarding proper jurisdiction. This new law also addresses the transfer between states of an older incompetent adult.

In addition to guardianships for the elderly, there exists proceedings for the guardianship of minor children and for disabled adults. Please call our office if we can assist you in evaluating the need for a guardianship and the options available to you.

Estate Planning & Admin