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Incompetency and Guardianship FAQ

I think my loved one needs day-to-day assistance, but is she incompetent?

  • An incompetent adult is one who “lacks sufficient capacity to manage the adult’s own affairs or to make or communicate important decisions concerning the adult’s person, family, or property, whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury or similar cause or condition.”

How do I become someone’s guardian?

  • Step one is filing a petition for adjudication of incompetence and application for appointment of a guardian. A hearing will then be held before the Clerk of Superior Court. If the Clerk finds by clear, cogent and convincing evidence that the respondent is incompetent, then a guardian must be appointed.

What is a guardian ad litem?

  • The guardian ad litem is a local attorney who will be appointed to represent the respondent unless the respondent retains private counsel. The guardian ad litem is required to visit the respondent and determine his/her wishes regarding the incompetency action and the proposed guardianship appointment. The guardian ad litem will report the respondent’s wishes to the court and will also make recommendations to the Clerk concerning the respondent’s best interests if those recommendations differ from the respondent’s wishes.

Do we need a doctor to testify at the hearing?

  • Not necessarily. The level of medical evidence necessary depends upon the history and whether the case is contested. In some cases, an affidavit from a doctor that includes a recommendation is sufficient.

Are there different types of guardians?

  • Yes. The Clerk can appoint a full or limited guardian of the person, guardian of the estate, or general guardian. If the Clerk finds that the respondent is only incompetent to a limited extent and that it is in his/her best interests to retain certain rights and privileges, a limited guardian will be appointed. If the Clerk finds that the respondent wholly lacks the capacity to manage his/her personal affairs, a full guardian will be appointed.
  • A guardian of the person has the authority to custody, care and control of the respondent’s person. A guardian of the estate has the authority to receive, manage and administer the property, estate and/or business affairs of the respondent. A general guardian is granted the authority of both the guardian of the person and the guardian of the estate.

We have a guardian in place already, but that person is no longer willing or able to serve. What do we do?

  • A motion to modify guardianship will need to be filed, and the Clerk will appoint a new guardian, if needed.

This is an emergency! How long does the entire process take?

  • The timeframe depends upon the county and the Clerk’s schedule. In Iredell County, the hearing date will be a few weeks after the petition is filed. The petitioner can request an interim hearing if there is an imminent or foreseeable risk of harm to the respondent’s physical well-being or estate that requires immediate intervention. The interim hearing date will be scheduled prior to the full adjudication and disposition hearing.

There are multiple people interested in becoming the guardian. Who will the Clerk appoint?

  • The Clerk will appoint a guardian that he/she believes will best serve the respondent. In some cases the Clerk will appoint one individual as guardian of the person and a different individual as guardian of the estate. Occasionally, there will be no suitable individual willing to serve as guardian. In those cases, the Clerk will appoint a public agency.

Do I have to hire an attorney or can I do this myself?

  • The forms are available at the courthouse and you are certainly able to file and pursue the case without the assistance of an attorney. Keep in mind that pro se individuals are held to the same standard as attorneys when it comes to filing documents, presenting evidence, etc. Attorneys are incredibly helpful, especially if your case becomes contested.

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