Guardianship

Main Menu Table of Contents Copyright Disclaimer Questionnaires FCS Home Page Elder Law Section Contributing Attorneys Related Links NC General Assembly

If you become incapacitated, either temporarily or permanently, your family, friends, business associates, creditors, or the state may need to petition the court to have you declared incompetent and to have a guardian appointed. This is particularly true if you have made no other arrangements for someone to handle your affairs. Advantage of guardianship Disadvantages of guardianship Procedure for determining incompetency Types of guardians Qualifications for a guardian Guardian's bond

Advantage of guardianship

Someone who is closely supervised by the court takes care of you and your property. The law requires your guardian to act in your best interests and to protect your rights.

---

Disadvantages of guardianship

There are many disadvantages to guardianship, and many believe that they far outweigh the advantage.

• Guardianship proceedings are open to the public unless you request the court to exclude all persons other than those people directly involved in or testifying at the hearing which is held to determine if you are legally incompetent.
• Guardianship proceedings are expensive. Unless you are indigent, you may have to pay all or a portion of the costs spent to determine if you are incompetent.
• Delays in getting a guardian appointed may cause problems for you and your dependents. An emergency procedure for an appointment of a guardian is available.
• If the court declares you legally incompetent, you lose the right to manage your own affairs until you can prove that you are competent.

---

Procedure for determining incompetency

The procedure for determining legal incompetency is a serious legal proceeding with serious consequences.

• Any person, including the state or a local human resource agency, may file a petition with the court for a determination of incompetence.
• You have the right to a lawyer. You may choose your own lawyer, or the court may appoint a lawyer, called a guardian ad litem, to represent you.
• You have the right to request a jury trial. If you do not request a jury trial, you waive this right. The clerk of court may order a jury trial, or the clerk of court may determine if you are competent.
• You may undergo medical, psychological and social work evaluations.
• A hearing is held, and evidence of your competence or incompetence is presented.
• If the clerk or jury finds that you are incompetent, the court declares you incompetent and appoints a guardian or guardians to handle your affairs. You become a ward, and you no longer have the legal right to manage your own affairs.
• You have the right to appeal from an order declaring you incompetent.

---

Types of guardians

A guardian of the estate manages your property and business affairs.

A guardian of the person performs duties relating to your care, custody, and control. A guardian of the person has the right to approve medical, psychological, legal, or other professional care and treatment.

A general guardian takes care of both your property and your person.

---

Qualifications for a guardian

The following people or organizations may be appointed as a guardian for an incompetent person.

• A guardian of the estate must be a resident of North Carolina
• A guardian of the person may be either a resident or nonresident of North Carolina.
• A general guardian must be a resident of North Carolina.
• A corporation authorized by its charter to serve as a guardian may be appointed as guardian.
• A disinterested public agent may be appointed as guardian.

---

Guardian's bond

A general guardian and a guardian of the estate usually must post a bond before receiving the ward's property. A guardian of the person does not post a bond, unless he or she is a nonresident of North Carolina.

---

For more information, see the article written by Dennis Toman, "Assisting the guardian of an incompetent adult," The Forum for Family and Consumer Issues, 4(1) 1999; <http://www.ces.ncsu.edu/depts/fcs/pub/1999/guardian.html>. For more information about guardianships in Wake County, North Carolina, see the Web site of the Wake County Superior Court.

---

References from the North Carolina General Statutes:
35A-1105. Petition before clerk.
35A-1107. Right to counsel or guardian ad litem.
35A-1110. Right to jury.
35A-1111. Multidisciplinary evaluation.
35A-1112. Hearing on petition; adjudication order.
35A-1114. Appointment of interim guardian.
35A-1115. Appeal from clerk's order.
35A-1116. Costs and fees.
35A-1130. Proceedings before clerk. (Restoration to competency)
35A-1210. Application before clerk.
35A-1212. Hearing before clerk on appointment of guardian.
35A-1213. Qualifications of guardians.
35A-1214. Priorities of appointment.
35A-1230. Bond required before receiving property.
35A-1241. Powers and duties of guardian of the person.
35A-1251. Guardian's powers in administering incompetent ward's estate.
35A-1261. Inventory or account within three months.
35A-1262. Procedure to compel inventory or account.
35A-1264. Annual accounts.

---

Prepared by Carol A. Schwab, J.D., LL.M., Professor and Extension Specialist, NC State University.

This publication is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not designed as a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in this publication are based solely on the laws of North Carolina in force on the date of publication.

Date: July 2000