Guardianships

A court appointed Guardian may be necessary when an individual lacks sufficient capacity to manage his or her own affairs, or is unable to make or communicate important decisions when other methods such as health care powers of attorney, living wills, durable financial powers of attorney, trusts, etc., have not been arranged or have otherwise proven not to be helpful.

According to North Carolina law, guardianship is appropriate when an adult, an emancipated minor, or a minor who is at least 17 1/2 years of age, who other than by reason of minority, lacks sufficient capacity to manage his affairs or to make or communicate important decisions concerning himself, family, or property, whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause. 

A guardianship case starts with the filing of a petition. The person who files the petition is called the petitioner. Although the guardianship statute allows “any interested person” to file for guardianship, the petitioner will typically be a family member, care provider, or social worker. The person who is alleged to be incompetent in the petition is called the respondent.

Other family members or interested persons may also attend the guardianship hearing or provide information. The Guardian ad Litem is an attorney appointed to represent the interests of the respondent. The Clerk of Court is the finder of fact who determines whether the respondent is incompetent and appoints a guardian.

Guardianship cases can be highly contested and emotional. The petitioner may be required to subpoena witnesses and medical records, present the testimony of witnesses, and ask the respondent’s witnesses questions. After careful consideration of all the evidence, the court will evaluate whether an individual possesses the legal capacity to make important decisions concerning his or her person or property. Incompetency of an individual must be proven to the court by clear, cogent, and convincing evidence. The burden of proof is on the person bringing the incompetency matter before the court.

If an individual is found to be legally incompetent, the court will appoint one or more guardians. There are several different types of guardianships that may be appointed, depending on the facts and circumstances.

Types of Guardians

  • Guardian of the Estate: Manages all assets, property, and business affairs of the incompetent.
  • Guardian of the Person: Performs duties relating to care, custody, and control of an incompetent person including, but not limited to medical care, food, shelter, and clothing.
  • Limited Guardian: Provides limited involvement to preserve certain individual rights and responsibilities.
  • General Guardian: Includes a Guardian of the Estate and a Guardian of the Person.

A court appointed Guardian may be reimbursed for reasonable expenses incurred while carrying out his or her duties as Guardian. Additionally, a court appointed Guardian may receive a commission for serving as Guardian. A Guardianship terminates upon the death of the incompetent individual or when the individual’s competence is restored by the court. At Rivers Law, we can assist you with petitioning the Court to declare a disabled adult incompetent. We can also assist with modifying the guardianship to change the guardian or to restore the rights to the ward.