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By William Miller and E. Drew Nelson, Attorneys at Law

Guardianship laws have been in place for many years; some recent updates to the guardianship laws in North Carolina took effect on January 1, 2024. While many people think about guardianship in relation to a child losing their parents, there are also cases when an adult needs a guardian.

The 2024 amendments to guardianship law offer clarification of incompetence: An adult or child who is able to communicate their wishes and handle their affairs through the use of a less restrictive alternative to guardianship is generally considered competent. If the individual needs some (but not full) support, less restrictive options like appointing a power of attorney to help pay the bills or be able to help make medical decisions, a special needs trust, home health aides, technological or other support should be considered. Adult guardianship should be a last resort if less restrictive options are not appropriate.

What is Guardianship?

Guardianship is a situation where the court orders the appointment of a legal guardian to make decisions and act on behalf of an individual who is not competent to make their own decisions (the ward). Evidence must be presented to convince the court that the individual is truly incompetent. A legal guardian might be appointed by the court in cases of severe dementia, mental illness, traumatic brain injury, intellectual disability, or similar illness or disease that prevents the individual from making their own decisions. Parents of children who are unable to sufficiently manage their affairs and to communicate important decisions may petition the court to appoint a guardian when that child reaches adulthood. This process can begin when the child is 17 ½, and should include an evaluation of whether there is a less restrictive alternative that would enable the child to make and communicate decisions effectively without a guardian.

In North Carolina, there are several types of guardianships. A limited guardianship can be tailored to meet the specific needs of the ward. A guardian of the person may be assigned to make decisions around where the individual lives or the type of medical care received. A guardian of the estate only addresses decisions around property and finance. A general guardianship covers both the person and estate. The courts are tasked with choosing the least restrictive guardianship for the person deemed incompetent.

The NC Courts have developed a video on Understanding Guardianship.

Who Can Be a Guardian?

The guardian may be a family member or a qualified third-party. The clerk of court will choose the guardian based on the best interests of the individual. Anyone wishing to be considered as the guardian should attend the hearing. According to the NC Courts, “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.[1]

What are the Responsibilities of the Guardian?

Responsibilities are based on the type of guardianship, but in general the guardian is expected to make sound decisions on behalf of the ward. The guardian has the responsibility to include the ward in decisions that impact them to the extent possible. This can differ greatly by person.

Under the new law, additional reports must be filed with the courts. This includes an annual accounting of financial, investment, and property decisions made on behalf of the ward; status reports about the ward’s welfare and condition; and notifying the court within 30 days of a move.

What is the Process for Declaring Someone Incompetent?

Anyone who believes an individual is incompetent may petition the court. A hearing is scheduled and the individual in question is served with the petition and notice of hearing. The petitioner must send copies of the petition and notice of hearing to the individual’s relatives or others the court may deem appropriate. As soon as the individual is served, the court will appoint an attorney as guardian ad litem (GAL) to meet with the individual to better understand the situation. The GAL must explain the person’s rights during this meeting. These rights include:

  • The right to a hearing (including asking for a jury to hear the case) prior to being judged incompetent.
  • The right to call witnesses, present evidence, and testify to their competence.
  • Notices of all petitions, hearings, and legal filings.
  • The right to hire an attorney (though no court appointed attorneys are provided).
  • The right to state their wishes, including who might be appointed as guardian.
  • The right to appeal the ruling.

The GAL must present the individual’s wishes to the clerk and may make recommendations to the court about the specific situation. In certain cases, an interim guardian may be appointed until the hearing is held and a guardian appointed. In any case, the person or agency filing the petition must present evidence to support their claim, as well as documentation as to why a less restrictive alternative will not work.

If declared incompetent, the ward does retain some rights, including the right to request a new guardian, transfer their case to another court, vote, drive, if authorized by the Court and DMV, modify the guardianship, or request restoration of competency.

Emergency Situations

In North Carolina, any person who believes a disabled adult is in danger due to abuse, neglect, or exploitation, is required by law to report the case to Adult Protective Services (Department of Social Services) in the county where the individual resides.

In Summary

If you believe a loved one is struggling to make decisions and care for themselves, you may wish to speak with an attorney about your options to help them. Contact Brinkley Walser Stoner today to speak with an attorney to learn more about guardianship and other less restrictive options.

Attorney William Miller has been a Member of the North Carolina Council on Developmental Disabilities since 2017. The recent amendments to the NC Guardianship laws are a by-product of many hours of work by Disability Rights NC and the IDD community. We thank them for their tireless efforts to protect the rights of the disabled.