Guardianship proceedings in North Carolina are special proceedings before the clerk of superior court.
Commencement of Proceedings:
The process is started when a petition is filed with the clerk’s office alleging that the respondent, or proposed ward, is legally incompetent. Any person may file a petition if they have reasonable concerns about an individual’s personal safety or physical or mental health, and they believe that person is lacking the capacity to make or communicate decisions. The petition must be filed in the respondent’s county of residence, include reasons why you believe the respondent is incompetent, and must be served on the respondent and other close family members.
Hearing and Appointment of GAL:
Once a petition is filed and served, the clerk’s office will schedule a hearing and appoint a guardian ad litem to represent the interests of the respondent. The guardianship hearing consists of a two-part inquiry. The clerk first hears evidence regarding the actual legal competence of the respondent. The petitioner must present competent evidence in the form of testimony and medical or psychological reports.
Standard of Care / Proof / Elements:
To declare someone incompetent, the clerk must find by clear, cogent, and convincing evidence that the respondent either: 1) lacks sufficient capacity to manage his or her own affairs; or 2) lacks the capacity to make or communicate important decisions regarding his or her person, family, or property. (N.C.G.S. § 35A-1101(7)) If the petitioner produces sufficient evidence of incompetence, the respondent is declared a ward and the hearing moves to a second phase to determine an appropriate guardian.
A petitioner seeking guardianship must also file an Application for Letters of Guardianship with the clerk’s office. The clerk will seek to appoint a guardian who will best serve the ward’s interests. The clerk will first appoint a North Carolina resident as guardian if available with a preference for family members. If no individual qualifies, the clerk will appoint a corporation authorized to serve in a fiduciary capacity, or a disinterested public agent, such as the local department of social services. (N.C.G.S. § 35A-1213, 1214))
North Carolina recognizes two types of guardians. A guardian of the estate is appointed to manage a ward’s financial, estate, and business affairs, while a guardian of the person is appointed to handle a ward’s personal care, custody, and control. During the second phase of the hearing, the clerk may appoint individuals to assume either role, or appoint a general guardian to serve as both guardian of the estate and person. A guardian, whether of the estate or person, is a fiduciary and has a legal responsibility to act in the ward’s best interest.
Call Experienced NC Guardianship Attorneys:
If you know someone who lacks capacity and needs the help of a guardian, please contact our experienced guardianship attorneys at 336-723-7200 for an appointment.
For more information on “How do I file for guardianship” see Chapter 35A of the North Carolina General Statutes. https://www.ncleg.net/EnactedLegislation/Statutes/PDF/ByChapter/Chapter_35A.pdf