Appointment and service as a guardian for another individual is a serious matter requiring much thought and preparation prior to and subsequent to accepting this responsibility. Mitchell, Brewer, Richardson have attorneys and staff prepared and experienced in counseling individuals through the complex procedures involved in guardianships and related special proceedings before the Clerk of Superior Court in Cumberland County, North Carolina. The attorneys in the law firm, Ronnie Mitchell, Coy Brewer, Billy Richardson and Chuck Brittain are experienced lawyers dedicated to representing families and individuals in cases in State and Federal Court, including guardianships and related special proceedings.

Purpose of the Guardianship Proceedings

By law, all adults are presumed to be competent and capable of making their own decisions regarding their personal and financial needs. Guardianship is a legal remedy designed to protect people whose functional limitations prevent them from making their own decisions by having a guardian appointed to make decisions for them.

Initiating a guardianship proceeding is a serious matter as it is usually the result of an adjudication of incompetency. One who has been adjudicated incompetent loses many of their basic rights most of us take for granted. A mental illness or developmental disability is not, by itself sufficient cause to declare a person incompetent. In addition, another person is not necessarily incompetent just because the way they spend their money or act may appear odd to someone else.

Definitions and Terms

1. Incompetent adult: an adult or emancipated minor who lacks sufficient capacity to manage his or her own affairs or to make or communicate important decisions concerning his or her 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 of condition.

2. Incompetent child: a minor who is at least 17 ½ years of age, not emancipated and who, other than by reason of minority, meets the criteria of an incompetent adult.

3. General Guardian: A guardian of both the estate and the person.

4. Guardian of the Person: A guardian appointed solely for the purpose of performing duties relating to the care, custody and control of the ward. This includes medical care and treatment, as well as placement.

5. Guardian of the Estate: A guardian appointed solely for the purpose of managing the property, estate, and business affairs of a ward.

6. Multi-Disciplinary Evaluation (MDE): An evaluation that contains current medical, psychological, and social work evaluations and may include current evaluations by professionals in other disciplines, including education, vocational rehabilitation, occupational therapy, psychiatry, speech and hearing, and communications disorders. N.C.G.S. §35A-1101 (14). An MDE must set forth the nature and extent of the disability and recommend a guardianship plan and program.

Guardianship Procedures

A. Filing of the Petition and Notice

1. Venue is the county in which the Respondent resides, domiciled, or is an inpatient in a treatment facility. . If the Respondent’s county of residence or domicile cannot be determined, venue will be in the county where the Respondent is present. N.C.G.S. §35A-1103(b).

2. Any interested person or agency may file a petition for adjudication of incompetence and appointment of guardian with the Clerk of Superior Court. The names and addresses of the next of kin and other interested parties will need to be determined prior to filing the petition as they must be served with notice of the filed petition.

3. The appointment of an interim guardian may be sought at the same time and on the same form as the petition. An interim guardian should always be considered if there is immediate need to protect the Respondent prior to the actual adjudication of incompetence.

4. A hearing must be set between 10 and 30 days after service of notice and petition to the Respondent. The hearing date is usually set at the time the petition is filed. There are times when a Multidisciplinary Evaluation (MDE) will be necessary and if that is the case the Clerk may extend the date for the hearing.

5. The Respondent must be served personally by the Sheriff. The Guardian ad Litem must be served within 5 days of filing the petition, however, unlike the Respondent, they may be served by mail.

6. An MDE may be requested by any party within 10 days after service of the petition on the Respondent. If an MDE is ordered, the hearing will be continued until such a time as the MDE is completed. The Clerk can order the MDE to be conducted by the local mental health authority with no costs to the parties. The MDE is confidential and will not be part of the public record of the proceeding.

7. Should the occasion arise, the Petitioner may take a voluntary dismissal of the proceeding as provided in Rule 41 of the North Carolina Rules of Civil Procedure, at any time except when the Petitioner has moved for appointment of an interim guardian. N.C.G.S. §35A-1112(g).

B. The Hearing

1. The Respondent has a right to request a jury trial, however, his failure to do so waives that right.

2. The matter is heard by the Clerk unless the Clerk orders a jury on his own motion.

3. The standard of proof for a finding of incompetence is clear, cogent and convincing evidence. The Petitioner and the Respondent are entitled to present testimony and documentary evidence, to subpoena witnesses and the production of documents, and to examine and cross-examine witnesses. N.C.G.S. §35A-1112 (b). North Carolina has in the past relied on a diagnosis-based determination of incompetency. The Clerk often requires an original signed physician’s statement attesting to the Respondent’s mental and/or physical health.

4. The clerk shall dismiss the proceeding if the finder of fact, whether the clerk or a jury, does not find the respondent to be incompetent. N.C.G.S. §35A-1112(c)

5. If the finder of fact, whether the clerk or the jury, finds by clear, cogent, and convincing evidence that the respondent is incompetent, the clerk shall enter an order adjudicating the respondent incompetent. The clerk may include in the order findings on the nature and extent of the ward’s incompetence. N.C.G.S. §35A-1112 (d).

6. Appeal from an order adjudicating incompetence shall be to the superior court for hearing de novo and then to the Court of Appeals. An appeal does not stay the appointment of a guardian unless so ordered by the superior court or the Court of Appeals. N.C.G.S. §35A-1115

C. The Appointment of a Guardian

1. If an interim guardian was appointed prior to the adjudication of incompetency, it terminates upon the adjudication of incompetency, a dismissal of the proceeding, or within 45 days of appointment.

2. Following an adjudication of incompetence, the clerk shall determine the nature and extent of the needed guardianship, the assets, liabilities, and the needs of the ward, and who can most suitably serve as guardian or guardians.

3. The priority of appointment is established by statute as follows: an individual, a corporation, or a disinterested public agent. A public agent will not be appointed guardian unless an appropriate individual is not available. The Clerk will base their appointment of a guardian on the best interest of the ward.

4. When appointing a guardian, the clerk shall enter an order setting forth: the nature of the guardianship, the powers and duties of the guardian or guardians, the rights and privileges retained by the ward, and the name of the person or entity appointed to fulfill each guardianship,( i.e. General Guardian, Guardian of the Person, Guardian of the Estate).

5. A General Guardian or Guardian of the Estate must be a resident of North Carolina. A Guardian of the Person may be a nonresident if a resident agent is appointed to accept service of process and the guardian submits to the jurisdiction of the North Carolina courts. N.C.G.S. §35A-1213

6. A General Guardian or Guardian of the Estate must also post a surety bond payable to the State. The amount of the bond is usually 1.25 times the value of all personal property including the annual income and all monetary assets. Any funds that have been deposited under a Receipt and Agreement with a qualified banking institution are excluded from the bonding requirement. The bank upon signing the Receipt and Agreement agrees not to allow any access to any principal amount without a court order. N.C.G.S. §35A-1231

7. A General Guardian or Guardian of the Estate are required to file an inventory within 90 days attesting to the property of the ward with the Court. The guardian is also required to file annual accountings with the Clerk showing all receipts and disbursements of the ward’s estate, including vouchers, receipts and/or cancelled checks for all payments. The annual accounting is audited by the Clerk. Guardians who fail to file an inventory or account may be found in civil contempt by the Clerk and removed from office. N.C.G.S. § 35A-1260, et.seq.

LIMITATIONS ON GUARDIANSHIP

"Guardianship should see to preserve for the incompetent person the opportunity to exercise those rights that are within his comprehension and judgement, allowing for the possibility of error to the same degree as is allowed to persons who are not incompetent. To the maximum extent of his capabilities, an incompetent person should be permitted to participate as fully as possible in all decisions that will affect him.”
N.C.G.S. §35A-1201 (a)(5).

North Carolina Courts have held that other specific rights are retained as follows:

1. Right to Marry.

An adjudication of incompetency is not conclusive on the issue of later capacity to marry and does not bar a party from entering into a contract to marry. The prior adjudication does not even shift the burden of proof in an annulment action. Geitner by and through First National Bank v. Townsend and Geitner, 312 S.E.2d 236, review den. 315 S.E. 2d 702 (1984).

2. Right to Vote.

Notwithstanding the contrary implication of N.C.G.S. § 122C-58, an Attorney General’s Opinion reasons that a person who has been adjudicated incompetent can register to vote pursuant to the state constitution’s grant of universal suffrage. 43:1 N.C. Attorney General Reports 85, 85-87 (1973), citing N.C. Constitution Art. VI, Sections 1 and 2.

3. Right to be a Witness.

Although adjudicated incompetent, a person’s right to be a witness in court still depends on whether the person understands the obligation of oath or affirmation and has sufficient capacity to understand and relate facts which will assist the jury in reaching its decision. A ruling on a person’s competency to be a witness is within the trial court’s discretion. State v. McNeely, 333 S.E.2d 738,740, 314 N.C. 451 (1985); see also State v. Benton, 174 S.E.2d 793, 799,276 N.C. 641,644 (N.C.1970) (person with delusions but who remembered some critical facts and indicated he knew meaning of oath permitted to testify).

4. Right to Make a Will.

In a will contest, the fact that the testator was under guardianship when the will was made raises a presumption that testamentary capacity was lacking. Yet, the presumption can be rebutted because testamentary capacity requires less than general capacity. Matter of Will of Maynard, 64 N.C. App. 211,307 S.E.2d 416, 423-430 (N.C. App. 1983), rev. den. 310 N.C. 477,312 S.E.2d 885 (1983).

5. Right to Drive.

The Clerk will send a certified copy of the adjudication order to the Department of Motor Vehicles where the ward has the burden of rebutting a presumption to revoke. If the Department of Motor Vehicles acts to revoke, the person may request a hearing in writing and shall retain their license until the hearing. N.C.G.S. §20-17.1

6. Right to contract.

The fact that a person has been adjudicated incompetent raises a presumption that he or she lacks sufficient capacity to enter into a valid contract. This presumption, however, may be rebutted by evidence that the individual had sufficient capacity to understand the nature and consequences of his or her actions at the time he or she entered into a contract. Medical College of Virginia v. Maynard, 236 N.C. 506, 73 S.E.2d 315 (1952). Therefore, contracts between an incompetent adult and another person are generally considered voidable, not void. An incompetent adult is responsible for the cost of necessary goods or services that are provided by others. In re Dunn, 239 N.C. 378, 79 S.E.2d 921 (1954).

ALTERNATIVES TO GUARDIANSHIP

Remember that guardianships take away many of the basic human rights even when limited, and often a problem which causes many people to think a guardianship as a solution can be solved using alternatives other than guardianship. Some of those alternatives are:

1. Power of Attorney: A written authority given by a competent person to an agent to make specific types of decisions on his or her behalf. A durable power of attorney can continue even after the mental capacity of the authorizing person deteriorates below the competence level. As most mental illness is episodic, people suffering from a degenerative disease can experience periods of clarity. A durable power of attorney can be prepared and ready to be signed on a day when the attending medical personnel can confirm the person is lucid. It is recommended that an affidavit attesting to the person’s competence to execute the power of attorney accompany the document.

2. Appointment of a Payee: The appointment as payee by a government agency to handle the financial benefits coming from that agency for the benefit of the person receiving said benefits such as: Social Security, SSI, SSDI, Veterans Benefits, Government Retirement.

3. Establishment of a Trust: Turns over the management of assets from the beneficiary and places the authority in a trustee who can be required to distribute the trust income or principal for the benefit of the beneficiary. When establishing the trust, care needs to be taken so the trust does not inadvertently cause ineligibility of government services, such as Medicaid. A special needs trust should always be drafted by someone with expertise in this field.

4. Establishment of a special bank account: Opening a bank account with certain restrictions such as a joint account requiring two signatures for all or some of the withdrawals. Using direct deposit to ensure that all income is coming directly to the bank. Setting up drafts from the bank account to pay certain obligations such as rent, utility payments as well as withdrawal orders which means a certain amount of money is sent from the bank to a specified party (i.e. to the mentally disabled person for their pocket money).

5. Social, habilitation, and advocacy services: A person’s capacity is not always necessarily fixed. There are times when a change in environment may affect capacity, or with training and/or treatment, an individual’s skills may improve. Guardianship may not be needed if the individual has support in making decisions or if the individual knows to ask for help in certain life domains.

6. Protective Services: Adult protective services may be available in helping protect an individual from exploitation or abuse, or in the instance where someone needs assistance in consenting to essential services.

7. Health Care Power of Attorney: This allows an individual to prepare advance instruction for mental health treatment enabling them to specify treatment decisions or refuse mental health treatment should he or she lose the capacity to give or withhold consent in the future. This directive requires two qualified witnesses in addition to the principal and would become effective when, in the professional opinion of a physician or psychologist, the individual lacks capacity to make and communicate treatment decisions. The individual may specify another person to make the mental health treatment decisions on his/her behalf.

SUMMARY

Having someone adjudicated incompetent and establishing a guardianship can create an emotional and, at times, complex situation. It is always advisable and to the best interest of all parties involved to seek counsel in order to ascertain what would truly be in the best interest of the disabled individual. The law firm of Mitchell, Brewer, Richardson has attorneys and staff experienced and prepared to advise you when dealing with these complex issues.

Contact us

For more information or to set up an appointment with an attorney to discuss a guardianship matter, contact our firm’s Bordeaux area office located at 225 Ray Avenue, Fayetteville, North Carolina at (910) 678-7100.

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