Incompetency and Guardianship in North Carolina
If a person is unable to make decisions for him or herself because of a reason such as a serious physical or mental illness, North Carolina law allows for the appointment of a guardian to assist and care for that person.
The process for determining if a person is unable to make his or her own decisions is called an “adjudication on incompetency,” and the process is governed by Chapter 35A of the North Carolina Statutes. This process is initiated by filing a request (called a petition) with the clerk of court in the county where the individual lives. Upon receipt of this petition, the court will appoint a Guardian ad Litem attorney for the individual free of charge, or the individual may hire his or her own attorney if desired. This Guardian ad Litem attorney typically speaks with the individual and other family members and reports the findings to the court.
If, at an adjudication hearing, the court determines the individual is unable to make his or her own decisions, the court will then decide who should serve as guardian and will issue “letters of appointment” indicating the type of guardianship it will order.
There are three types of guardianship in North Carolina: guardian of the person (responsible for care of the physical person), guardian of the estate (responsible for managing the individuals money and other affairs), and general guardian (which is a combination of the first two types).
The process of having a guardian appointed, and navigating the responsibilities of being a guardian, can be difficult. The assistance of an experienced attorney to help navigate the various aspects of this process can be extremely helpful.