- What is guardianship?
Guardianship is a legal relationship in which a person(s) or agency (the guardian) is appointed by the court to make decisions and act on behalf of a person who does not have adequate capacity to make such decisions involving the management of personal affairs, property, or both. A court process is required to create a guardianship. Additional information to help understand guardianship, including a video titled Understanding Guardianship, is available here.
- What is the role of a guardian?
A guardian is a surrogate decision maker and advocate for an individual (the ward) who has been adjudicated incompetent by the court. The guardian must allow the ward to participate as much as possible in the decisions affecting him or her. The guardian is required to preserve the opportunity for the ward to exercise the rights that are within his or her comprehension and judgment, allowing for the same possibility of error as a person who is not incompetent. The guardian must protect the ward’s right to make his or her own choices.
- Is guardianship the same as power of attorney?
No. Under a power of attorney, an individual decides who will assist him or her with important decisions and the management of his or her own affairs and delegates that authority in a written document(s) without a court proceeding. In guardianship, the court (clerk of superior court) decides who will be responsible for managing a person’s affairs and/or property. The court could appoint a non-family member as a guardian. It is important to weigh all alternatives to guardianship prior to filing a petition with the court. Guardianship should only be considered when no other alternative is appropriate.
- Are there alternatives to guardianship?
North Carolina law favors less restrictive alternatives to guardianship if possible. You can read more about these alternatives here. Some alternatives include:
- Durable Power of Attorney and Health Care Power of Attorney: An adult who is able to understand what he or she is signing at the time may be able to execute these documents, giving another person the authority to handle financial, medical, or other matters for him or her in the future. An attorney can help prepare these documents. Statutory short forms for powers of attorney are available here and here.
- Advance Directive for Natural Death (“Living Will”) and Advance Directive for Mental Health Treatment: Advance directives are legal documents that give instruction on what medical treatment a person would want or not want. Advance directive forms are available through the NC Secretary of State here. Advance directives may be filed with the North Carolina Secretary of State and information for this registry is available here.
- Representative Payee: Individuals entitled to receive certain state or federal benefits, who are determined to be unable to manage these benefits, may be assigned an individual or agency payee to receive and manage these funds for their benefit. Examples are Social Security income, supplemental security income, and veteran’s benefits.
- Bank Accounts: Joint bank accounts that require both signatures for withdrawals or that have automatic payment options can be set up to manage money.
- Special Needs Trust: This is a type of trust that holds money for the benefit of a person with a disability to help maintain eligibility of needs-based public benefits. An attorney can assist in setting up a special needs trust.
- Home Health Care: Home health care agencies can assist people with activities of daily living, like dressing, bathing, cooking, and cleaning.
- Support: People who may not be able to independently manage all details of their lives may be able to manage without a guardian if they have trusted family, social support and community support, for instance, help with budgeting or medication reminders.
- Supported Decision Making: For some individuals, guardianship can be avoided by developing a network of trusted individuals that can provide support by assisting with decision making.
- When does the court appoint a guardian for an adult?
A guardian is appointed for an adult if the court finds by clear, cogent and convincing evidence that a person alleged to be incompetent lacks sufficient capacity to manage his or her own affairs or to make or communicate important decisions about the person’s self, family, or property. The lack of capacity may be due to mental illness, intellectual or developmental disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or a similar cause or condition. Showing poor judgment or wastefulness is not necessarily enough to show that a person is incompetent.
- What is a “ward”?
A “ward” is an adult who has been adjudicated incompetent or an adult or minor for whom a guardian has been appointed by a court.
- Who are the “petitioner” and the “respondent”?
The petitioner is a person who files a petition with the court alleging that an adult lacks capacity to manage his or her affairs or to make and communicate important decisions about his or her self, family, and/or property and requesting that a guardian be appointed. The respondent is the adult who is alleged to be incompetent, and who will become a ward if the clerk determines that he or she is in fact incompetent.
- What are Principles of Guardianship?
The following principles have been recognized and incorporated by statute:
- Guardianship should be considered only when less intrusive alternatives are not appropriate and if it will give an individual a fuller capacity for exercising his or her rights.
- Guardianship should seek to preserve opportunities for the individual to exercise rights that are consistent with his or her capabilities, allowing for the possibility of error to the same degree as is allowed to persons who are not incompetent.
- A person under guardianship should be involved in all decision making consistent with his or her capabilities.
- What rights do incompetent adults lose?
An adult ward may lose many of the rights that adults otherwise have, though it is possible for a ward to retain certain rights and privileges through a limited guardianship. The guardian may have the authority to decide where and with whom the ward lives, what medical treatment the ward receives, how to handle the ward’s money and property, how to resolve legal claims or court cases in which the ward is involved, and whether to enter into contracts on the ward’s behalf. A ward may lose the privilege to drive, the right to file a court case independently, or the right to enter into contracts, among other rights. A ward loses the right to serve on a jury, possess or purchase firearms, and execute powers of attorney. A ward who wishes to keep his or her driving privilege can request a hearing with the Department of Motor Vehicles and show evidence that he or she should be permitted to drive.
- What rights do incompetent adults keep?
Incompetent adults have the right to participate in decisions affecting them and make decisions to the extent they are able to do so. Incompetent adults have the right to vote and the right to marry. Under some circumstances, an incompetent adult may be able to make a will. Powers of attorney executed after a person is adjudicated incompetent and while under a guardianship are not valid. Incompetent adults have the right to file motions or appeals in their guardianship cases and have the right to be represented by an attorney or guardian ad litem in these proceedings.
- What are “limited guardianships”?
In a limited guardianship, an adult ward retains some rights that would otherwise be lost in guardianship. North Carolina law encourages clerks to consider limited guardianships tailored to the needs of the incompetent person.
- What are the different types of guardianship in North Carolina?
Guardianships can be classified by the powers of the guardian. In the clerk of superior court’s order appointing a guardian(s), the powers and duties of the guardian(s) are outlined. Powers and duties of Guardians of the Person are outlined in G.S. §35A-1241(a). Powers and duties of Guardians of the Estate are outlined in G.S. §35A-1251 and 1253. General Guardians have the powers of both a Guardian of the Person and a Guardian of the Estate. Each of these types of guardianships should be limited to meet the specific needs of the ward, as appropriate.
- Who decides guardianship cases?
Competence and Guardianship proceedings are handled by the clerk of superior court or an assistant clerk of superior court, who presides over the hearings and makes all decisions in the case. The respondent or guardian ad litem may request a jury to decide the issue of competence, but if the respondent is determined to be incompetent, only the clerk can decide who will serve as guardian. Decisions on competence and guardianship can be appealed to superior court.
- What if someone needs emergency protection?
Every North Carolina county has a Department of Social Services, providing Adult Protective Services, which investigates allegations of abuse, self and caretaker neglect, and exploitation of adults who are disabled, meaning they cannot complete daily activities or handle their affairs or protect interests and are unable or unwilling to obtain essential services themselves. North Carolina law requires any person having reasonable cause to believe that a disabled adult is in need of protective services to report such information. Contact information for county Departments of Social Services and for reporting can be found here.
If a person is a danger to him- or herself or others due to mental illness or substance abuse, a petition can be filed with the magistrate in the person’s county of residence for involuntary commitment to a medical facility.
Upon the filing of a verified petition for adjudication of incompetence, a motion may be filed requesting the appointment of an interim guardian. See below for more information.
- Who can file a petition to have someone found incompetent?
Any person, including a relative, friend, medical provider, or any State or local human services agency, through an authorized representative, can file a verified petition with the court. The petitioner is responsible for presenting evidence at the hearing to prove by clear, cogent and convincing evidence that the respondent is incompetent, which may include subpoenaing witnesses to testify.
- Can the adult guardianship process be initiated prior to a minor turning age 18?
Yes. A petition for adjudication of incompetence may be filed when a minor is at least 17 ½ years old.
- Where is a petition for adjudication of incompetence filed?
Petitions for adjudication of incompetence are filed in the special proceedings division in the clerk of superior court’s office. The clerk of superior court can give you a copy of the petition, or you can find it online here. The petition must be verified under oath in front of a clerk or a notary public. A party may file a petition with the clerk of superior court in the county where the respondent resides or is domiciled or is an inpatient in a treatment facility as defined in G.S. 122C-3(14), which includes group homes, halfway houses, and other community-based residential facilities. If the county or residence cannot be determined, the petition may be filed in the county where the respondent is present. Note: In order for a court to have jurisdiction in an incompetency proceeding, the court must have subject matter jurisdiction pursuant to N.C. G.S. § 35B.
- What information is needed to file a petition?
Basic identifying information about the respondent is necessary to complete a petition. Additional information required includes where the respondent has lived for the past 12 months; facts tending to show that the respondent is incompetent and reasons to show why the adjudication of incompetence is sought; names and contact information for the respondent’s next of kin and other persons known to have an interest in the proceeding; information about the respondent’s assets, liabilities, and income; and information about the respondent’s ability to manage various aspects of daily life. On the court petition form, a specific person or an agency may be recommended as guardian. However, there is no requirement to recommend a guardian. Upon adjudication, if a qualified guardian is not available to serve, the clerk may appoint a corporation authorized to serve as a guardian by its charter or a county Department of Social Services.
- What is the filing fee?
There is a $120 filing fee, as well as a $30 fee for the sheriff to serve the respondent with the petition. The clerk of superior court determines who is responsible for payment of fees and costs. The filing fee and sheriff’s service of process fee may be required at the time of filing. If the respondent is adjudicated incompetent and is indigent, meaning that he or she is unable to pay court fees and costs, then the clerk of superior court can waive the court costs. However, if the clerk finds that the petitioner did not have reasonable grounds to bring the case, the petitioner may be required to pay all costs, including fees for the guardian ad litem and any multidisciplinary evaluation that is ordered.
- Who has to be served in an incompetency proceeding?
The respondent must be served personally by sheriff. At the time of filing, the clerk will appoint a guardian ad litem, who must also be served pursuant to G.S. 1A-1, Rule 4, Rules of Civil Procedure. The petitioner is responsible for mailing via first class mail a copy of the petition and notice of hearing to the respondent’s next of kin who are listed in the petition and any other persons the clerk may designate within 5 days after filing the petition. The petitioner must certify that this service was completed and may use this form.
- Can the petitioner get a court-appointed attorney?
No. Parties may hire their own attorneys. Court officials, such as judges and clerks of court, cannot provide parties with legal advice about their rights and obligations or the likely outcome of a case. A petitioner representing his or herself in court will be held to the same rules of civil procedure and evidence as a licensed attorney.
- When will the hearing be held?
The hearing will be held between 10 and 30 days after the respondent is personally served with the petition, unless the clerk extends the time for good cause, for preparation of a multidisciplinary evaluation, or for the completion of a mediation.
- There is an immediate need for a guardian. Is there a way to have a quicker hearing?
The petitioner or guardian ad litem attorney may file a verified motion for the appointment of an interim guardian. The petitioner or guardian ad litem attorney may file the motion at the time the petition is filed using the petition form here or after the filing of the petition using this form. The hearing will be held as soon as possible, but no later than 15 days after the respondent has been served with the motion and notice of hearing. A clerk can also appoint an interim guardian on his or her own motion at the hearing on the petition for adjudication of incompetence if the clerk finds this to be in the respondent’s best interest.
- What happens if an interim guardian is appointed?
The clerk of superior court or an assistant clerk will hold a hearing to decide whether an interim guardian should be appointed and what the interim guardian’s responsibilities should be. If the clerk appoints an interim guardian, the clerk’s order will limit the interim guardian’s powers and duties based on the immediate needs of the respondent. The interim guardianship terminates upon the occurrence of one of the following: (1) on a date specified by the clerk, (2) at the expiration of 45 days, (3) when a guardian is appointed, or (4) when a case is dismissed. For good cause, the clerk may extend the interim guardianship for an additional 45 days. An interim guardian with authority related to the respondent’s estate is required to post a bond in an amount determined by the clerk and file an account with the clerk.
- What is the role of the Guardian ad Litem (GAL)?
When a petition is filed, the clerk of court will appoint an attorney as guardian ad litem (GAL) to represent the respondent in the hearing. The guardian ad litem will visit the respondent as soon as possible and try to determine the respondent’s wishes. The guardian ad litem is responsible for presenting the respondent’s wishes to the clerk during the hearing, and the guardian ad litem may also make a recommendation to the clerk about the respondent’s best interests.
- Can the respondent hire an attorney?
Yes. The respondent can choose to hire his or her own attorney. If the respondent hires an attorney, the clerk may release the guardian ad litem.
- What is a Multidisciplinary Evaluation (MDE)?
A Multidisciplinary Evaluation (MDE) is an evaluation that the clerk can order, if requested in writing by a party or on the clerk’s own initiative, in initial incompetency or restoration to competency proceedings. This can include medical, psychological, social work, education, vocational rehabilitation, and occupational therapy evaluations of the respondent.
- What happens at an incompetency hearing?
At the hearing, the petitioner and respondent are allowed to present testimony and documentary evidence, to subpoena witnesses and the production of documents, and to examine and cross-examine witnesses. The petitioner is responsible for proving that the respondent is incompetent by clear, cogent and convincing evidence. The North Carolina Rules of Civil Procedure and Rules of Evidence apply to these proceedings.
- Does the recommended guardian need to be at the hearing?
Yes. Anyone who wishes to be considered as guardian should be present at the hearing. The clerk may ask questions of any potential guardian(s) to determine who is most suitable to serve as guardian(s).
- When will the clerk make a decision?
The clerk may announce his or her decision at the end of the hearing, may order a multidisciplinary evaluation to be completed before making a decision, or may make a decision after the hearing.
- How does the clerk decide who to appoint as guardian?
The clerk makes this decision based on the best interests of the ward. The order of priority for appointment that a clerk must consider is: (1) an individual recommended under the will of the deceased parent of an unmarried child adjudicated incompetent, (2) an individual, (3) a corporation, and (4) a disinterested public agent, such as a county Department of Social Services.
- Can the clerk’s decision be appealed?
A party may appeal in writing within 10 days of the clerk’s decision. There is not a court form available for this. If a party appeals the decision on the issue of competence, there will be a new hearing before a superior court judge. If a party appeals the decision of choice of guardian, there will be a review hearing before a superior court judge. There is no court fee or bond assessed to file a notice of appeal. If the clerk of court appoints a guardian, the guardianship will stay in place during the appeal, unless the court issues a stay of the order.
Restoration to Competency
- What happens when a ward no longer needs a guardian?
Any interested person, including the ward, the guardian, or a third party, may file a motion in the cause for restoration to competency.
- What is the process for filing for restoration to competency?
A verified motion in the cause for restoration to competency is filed with the clerk of superior court in the special proceedings division in the county where the guardianship case is located. The Motion for Restoration to Competency form can be found here and the accompanying Notice of Hearing here. These documents must be served either by the sheriff, certified mail, or other means in accordance with provisions of G.S. 1A-1, Rule 4 on the guardian, the ward, and any other party to the original case, such as the person who filed to have the ward adjudicated incompetent.
- What happens after the motion is filed?
The ward is entitled to be represented by counsel or guardian ad litem attorney. Upon motion of a party, or upon the clerk’s own motion, a multi-disciplinary evaluation may be ordered. The respondent, his or her counsel or guardian ad litem may request a jury trial. A hearing will be scheduled, where the clerk of court or jury, if requested, will decide the case.
- What happens at the hearing?
The person who filed the motion must prove by a preponderance of the evidence that the ward is now able to manage his or her own affairs and to make and communicate important decisions about him- or herself and his or her family and property. All of the parties, including the ward and the guardian, will have the opportunity to testify, call witnesses, and present documentary evidence.
- What are the possible outcomes from the hearing?
The clerk may fully restore the ward’s competency or deny the motion and leave the guardianship in place. The clerk may also limit the guardianship by granting the ward new rights and privileges while keeping the guardianship in place.
- What happens when a person’s competency is restored?
When a person’s competency is restored, he or she is able to manage his or her own affairs and exercise all rights as if he or she were never adjudicated incompetent and will no longer have a guardian. However, a person whose competence is restored does not automatically regain the right to purchase, possess, or transfer a firearm.
- Can the clerk’s decision be appealed?
The clerk’s decision can be appealed in writing within 10 days after the written order is entered for a new hearing before a superior court judge. There is no court form available to file a notice of appeal. The guardianship will stay in place pending the appeal.
- Can a guardian be appointed for a minor?
A guardian may be appointed for a minor under certain circumstances.
Minors, because they are legally incompetent to transact business or give consent for most purposes, need responsible, accountable adults to be responsible for their personal welfare, for personal decision-making, and to handle property or benefits to which they are entitled.
- When can the court appoint a guardian for a minor?
A court may appoint a guardian of the estate for a minor (under age 18), pursuant to Art. 6 in G.S. 35A, who is to receive property, such as an inheritance, life insurance proceeds, or an award from a lawsuit. A court may appoint a guardian of the person or a general guardian if both of the child’s parents are either deceased or have had their parental rights terminated in a court proceeding.
- Where is an application for appointment of a minor (under age 18) filed?
An application for the appointment of a minor may be initiated by completing this form under oath and filing it in the estates division with the clerk of superior court in the county where the child lives. Basic identifying information about the child is required as well as information about the child’s parents and others with an interest in the guardianship, such as relatives or custodians, and information about the child’s assets.
- What happens after an application is filed?
The clerk of court will set a date for a hearing on the guardianship once the application is filed. Copies of the application and a notice of hearing must be served on any parent, guardian or legal custodian of the minor other than the applicant, and on any other person the clerk may direct, including the child. Parties may waive their right to notice of the hearing.
- Will a guardian ad litem be appointed for the child?
Possibly. The clerk of court may choose to appoint a guardian ad litem, depending on the circumstances. The guardian ad litem will visit the child, learn about the family, and make a recommendation to the clerk.
- What happens on the hearing date?
The hearing may be held in a courtroom, a conference room, or an office. The clerk of superior court or an assistant clerk will conduct the hearing. The applicant will be allowed to testify under oath and present evidence, including witnesses and documents. Other interested parties, such as family members who dispute the guardianship, may be allowed to testify and present evidence. If a guardian ad litem was appointed, he or she will make a recommendation to the clerk.
- Can a decision in a minor guardianship be appealed?
Notice of appeal must be filed within 10 days of entry of the clerk’s written order. An appeal hearing is not a new trial, but allows a superior court judge to review whether the record shows any error by the clerk.
- How does a guardian “qualify”?
The appointed guardian must take an oath to uphold his or her duties. Guardians who will have control over the ward’s assets and property, and some non-resident guardians, must file a bond approved by the clerk before receiving their authority. Certain individuals may be disqualified by statute to serve.
- What are the duties of a Guardian of the Person?
If the clerk of court does not provide for more limited duties through a limited guardianship, a guardian of the person has broad responsibilities for the care and custody, and maintenance of the ward. Those responsibilities may include providing for the ward’s everyday needs, establishing the ward’s home, maintaining the ward’s personal property such as clothing or vehicles, and arranging for the ward’s education, employment or rehabilitation. The guardian of the person may consent to medical or psychological treatment for the ward, unless the ward previously appointed someone else to make these decisions through a health care power of attorney. The clerk shall consider whether a limited guardianship is appropriate. You can view all the powers and duties of a guardian of the person here. You can find additional information prepared by the North Carolina Administrative Office of the Courts here.
- Are status reports required of a Guardian of the Person?
All public guardians are required to file status reports under oath or affirmation with the court, and the clerk of court may require these reports from all guardians. Status reports are not available to the general public. Information required in status reports can be viewed here.
- What reports are required of a Guardian of the Estate?
A guardian of the estate or general guardian must file an inventory of the ward’s assets within 3 months after qualification and must file an annual account each year regarding the status of the ward’s property and money received and paid.
- What are the duties and requirements of a General Guardian?
A general guardian has all the duties and accounting requirements of both a guardian of the person and a guardian of the estate.
- Does a guardian have the authority to sell real estate owned by the ward?
A guardian of the estate or general guardian must file a verified petition with the court for approval to sell real property. This is a complicated process that requires court approval. An attorney can assist with this process.
Modification of Guardianship
- How can a guardian be removed or replaced?
Any person can file a motion to modify a guardianship, including a motion to remove a guardian. The clerk will hold a hearing on the motion and decide if any changes are in the ward’s best interests. The clerk can remove the guardian if he or she is unsuitable, for instance, if the guardian wastes or mismanages the ward’s property or takes it for the guardian’s own use, does not file required accountings, or neglects to care for the ward. You can find a full list of circumstances that require removal here.
- What if a guardian is no longer able to serve?
A guardian can file a motion to modify asking to resign as guardian, and the court can appoint a new guardian.
- Can a guardian’s duties or a ward’s rights be changed?
Yes. A party can ask the clerk to change a guardian’s duties or a ward’s rights by filing a motion to modify.
- What if the ward moves to another county in North Carolina?
A party may request the transfer of the guardianship to the county where the ward now lives, or the court may transfer the guardianship on its own initiative.
- Can a guardianship be registered in additional states?
Yes. You may wish to register a guardianship if the ward spends some of his or her time or receives medical treatment in a state other than the one where the guardianship was created. If you currently have guardianship in another state and wish to register that guardianship in North Carolina, you can do so using this form.
- Is it possible to transfer an adult guardianship from one state to another?
Yes. Procedures for transferring adult guardianships to or from North Carolina are governed under G.S. 35B-30 and 35B-31. To initiate a transfer of guardianship from North Carolina to another state, you must first petition North Carolina for a transfer and may use this form. To transfer guardianship from another state to North Carolina, you must first request a provisional order of transfer from the other state. Once you have received that order, you can petition North Carolina to accept the transfer of guardianship using this form.