In North Carolina, Incompetency and Guardianship of Adults is governed by North Carolina General Statute § 35A. When a friend or loved one becomes unable to make decisions for himself/herself, guardianship may be appropriate. In order to appoint a guardian or guardians for an adult, the court must first declare the individual incompetent. After filing a Petition for Adjudication of Incompetence, the court appoints a local attorney as a Guardian ad Litem ("GAL") for the Respondent (the person alleged to be incompetent) and holds a hearing on the merits to determine competency. The court must determine whether the Respondent has the ability to manage his/her person, family and/or finances. The court may consider testimony of the family or friends of the Respondent, the Respondent's testimony, medical records, bank statements and any other pertinent evidence. The Clerk of Superior Court listens to all evidence and makes a ruling. It is the role of the Guardian ad Litem to represent the Respondent throughout the proceedings but to also recommend what the GAL believes is in the best interests of the Respondent. It is noteworthy that an adult may make bad decisions regarding his/her life but still be competent. The hearing usually revolves around the Respondent's ability and capacity to make decisions for himself/herself; not just whether the person makes "good" decisions.
In some cases, it may make sense for a parent to obtain guardianship of a child turning 18 that is unable to manage his/her affairs due to mental health conditions or intellectual disabilities. In some cases, it may make sense for a child to obtain guardianship of a parent who has dementia or Alzheimer's disease.
The court may dismiss the Petition for Adjudication or grant it and adjudicate the Respondent incompetent. If the court declares the Respondent incompetent, it must appoint a guardian or guardians for the Respondent. A Guardian of the Person ("GOP")makes decisions for the Respondent concerning his/her person. These decisions include where the Respondent goes to the doctor, what treatments the Respondent will receive, where the Respondent will live and all other medical decisions. A Guardian of the Estate ("GOE") makes financial and property decisions for the Respondent. The GOE pays bills for the Respondent, manages money and makes other property decisions. The GOE has court oversight and must file certain required inventories and annual accountings with the court. A General Guardian is a guardian that has both GOP authority and GOE authority. If you have concerns about a family or loved one, please contact a local attorney to help you navigate the possibility of guardianship.
In some cases, it may be possible to prevent guardianship of yourself in the future. In North Carolina, a person may execute a General Durable Power of Attorney ("POA")and a Healthcare Power of Attorney ("HCPOA") to serve as their agents in the event of future incapacity. A General Durable Power of Attorney, if drafted properly, may survive incompetency and allow a designated representative to make certain decisions for you regarding your property, finances and estate should you become unable to make these decisions yourself. It is important to carefully consider this decision as you may grant someone authority to make big decisions for you should you become unable or disabled to make them yourself.
A HCPOA may be executed to name an individual or individuals to make healthcare decisions for you should you become unable to make them for yourself. Much like the POA, the HCPOA decision should be carefully considered.
If a person has the appropriate estate planning documents in place, it is possible to avoid guardianship in the future. Taking the time to put these documents into place today may save you and your family time and money in the future by potentially avoiding guardianship. If you have any questions regarding guardianship or estate planning documents, please contact a local attorney.
-Matthew G. Moore, Attorney at Law