Guardianship and Alternatives to Guardianship

Guardianship Services are provided to individuals who are alleged to be incompetent or adjudicated incompetent by the court. For adults who have been adjudicated incompetent by the court, directors or assistant directors of local Departments of Social Services often serve as guardians.

Services include:

  • Assessing an individual's need for guardianship
  • Locating the appropriate person(s) to serve as guardian(s)
  • Petitioning or assisting the individual's family for the adjudication of incompetence and the appointment of a guardian
  • Ongoing casework when the agency director or assistant director has been appointed as guardian

Responsibilities of the guardian include:

  • Making decisions about where the individual will live
  • Authorizing medical treatment, managing the individual's finances
  • Filing status reports and accountings with the court

Guardianship

Guardianship is a legal relationship in which someone (the guardian) is authorized by the clerk of superior court to be substitute decision maker for an incompetent adult (the ward). Incompetence is determined in a court proceeding and means an adult is unable to manage his own affairs, or is unable to make important decisions.

Determining Incompetence
Anyone may file a written request (a petition) with the clerk of superior court alleging that an adult (the respondent) should be declared incompetent. Every clerk's office has forms that may be completed and filed for the petition. The petition must include a sworn statement that the information in the petition is true. A fee for filing the petition may be required and may be reimbursed later by the court unless the court determines the petitioner did not have good reason to start the guardianship proceeding.

When a petition is filed, the clerk of court sets a date and time for the guardianship hearing. The sheriff serves copies of the petition and notice of the hearing on the respondent and on his attorney or other representative. The petitioner must mail copies of the petition and notice of the hearing to the respondent's spouse and relatives.

The petitioner may not need to be represented by an attorney at the hearing. However, it is advisable to at least talk with an attorney before starting a proceeding to have the court declare someone incompetent. If the petitioner is represented by an attorney at the hearing, the petitioner is responsible for paying the attorney's fees.

Guardianship Proceedings
Before the hearing, the clerk may order medical, psychological, social work and other evaluations of the respondent. The petitioner or respondent may request such evaluations at the time the petition is filed, and both may receive a written report of the results.

The respondent may arrange for an attorney of his choice to represent him in the proceeding. If he doesn't have an attorney, the clerk of superior court appoints one, called a guardian ad litem, to represent him. The respondent is responsible for his attorney's fee. If the respondent is not financially able to pay the fee, the court will pay it.

At the hearing, the clerk serves as judge. The clerk or a jury will consider the results of the requested evaluations and other evidence that relates to whether the respondent is incompetent. The petitioner is responsible for presenting sufficient evidence to convince the clerk or jury that the respondent is incompetent. If the evidence does not convince the clerk or jury that the respondent is incompetent, the clerk dismisses the petition. If the clerk or jury decides that the respondent is incompetent, the clerk hears additional evidence about who should be appointed the guardian or guardians for the adult.

Once the adult has been determined to be incompetent and a guardian(s) is appointed, the guardian will receive a written order of appointment from the clerk. This order explains the guardian's powers and duties. If the guardian has questions about his powers and duties, he may direct them to the clerk or to an attorney.

Types of Guardians
The clerk may appoint a guardian of the person a guardian of the estate or a general guardian.

The specific powers and duties a guardian may be given are found in North Carolina General Statutes, Chapter 35A.

Guardian's Financial Obligations
A guardian is not required to support the ward financially or to contribute the guardian’s own resources to the ward.

  • The guardian is not liable for the ward's debts.
  • A guardian may be reimbursed from the ward's estate for reasonable expenses incurred in carrying out his duties as guardian.
  • A guardian of the estate or general guardian may also receive a commission set by the clerk from the ward's estate for serving as guardian.

A guardianship, and the guardian's powers and duties end when any of the following occurs:

  • The guardian resigns
  • The ward's competence is restored
  • The clerk of superior court removes the guardian from his position
  • The ward dies
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