For adults who have
been adjudicated incompetent by the court, directors or assistant directors
of local human services agencies (county departments of social services,
area mental health agencies, local health departments, county departments
on aging) often serve as guardians. Directors and assistant directors
of local human services agencies are appointed to serve as guardians
when no other adult individual or corporation is available and willing,
as required by North Carolina General Statute 35A.
are provided to individuals who are alleged to be incompetent and to
individuals who are adjudicated incompetent by the court and need a
guardian. Services may include assessing an individual's need for guardianship;
locating the appropriate person(s) to serve as guardian(s); and, when
necessary, petitioning or assisting the individual's family to petition
for the adjudication of incompetence and the appointment of a guardian.
Services may also include ongoing casework with the individual, the
individual's family, and caregivers when the agency director or assistant
director has been appointed as guardian. Responsibilities of the guardian
may include making decisions about where the individual will live,
authorizing medical treatment, managing the individual's finances,
and filing status reports and accountings with the court.
For additional information
about guardianship, please read the information provided below:
Are there different kinds of guardians?
When does a guardianship end?
Guardianship is a
legal relationship in which someone (the guardian) is authorized by
the clerk of superior court to be substitute decision maker for an
incompetent adult (the ward). Incompetence is determined in a court
proceeding and means an adult is unable to manage his own affairs,
or is unable to make important decisions.
How is a proceeding
to determine incompetence started?
a family member, representative of a county Department of Social Services,
mental health center, health department, or anyone else who knows the
person, may file a written request (a petition) with the clerk of superior
court alleging that an adult (the respondent) should be declared incompetent
and have a guardian appointed. Every clerk's office has forms that
may be completed and filed for the petition. The petition must include
a sworn statement that the information in the petition is true. A fee
for filing the petition may be required in some situations and may
be reimbursed later by the court unless the court determines the petitioner
did not have good reason to start the guardianship proceeding.
When a petition is
filed, the clerk of court sets a date and time for the guardianship
hearing. The sheriff serves copies of the petition and notice of the
hearing on the respondent and on his attorney or other representative.
The petitioner must mail copies of the petition and notice of the hearing
to the respondent's spouse and relatives.
The petitioner may
not need to be represented by an attorney at the hearing. However,
it is advisable to at least talk with an attorney before starting a
proceeding to have the court declare someone incompetent. If the petitioner
is represented by an attorney at the hearing, he is responsible for
paying his attorney's fees.
What is involved
in a guardianship proceeding?
Before the hearing,
the clerk may order medical, psychological, social work, and other
evaluations of the respondent to help determine whether he is incompetent.
The petitioner or respondent may request such evaluations at the time
the petition is filed, and both may receive a written report of the
The respondent may
arrange for an attorney of his choice to represent him in the proceeding.
If he doesn't have an attorney, the clerk of superior court appoints
one, called a guardian ad litem, to represent him. The respondent is
responsible for his attorney's fee, but if he is not financially able
to pay the fee, the court will pay it.
At the hearing, the
clerk serves as judge and he or a jury will consider the results of
the requested evaluations and other evidence that relates to whether
the respondent is incompetent. The petitioner is responsible for presenting
sufficient evidence to convince the clerk or jury that the respondent
is incompetent. If the evidence does not convince the clerk or jury
that the respondent is incompetent, the clerk dismisses the petition.
If the clerk or jury decides that the respondent is incompetent, the
clerk hears additional evidence about who should be appointed the guardian
or guardians for the adult.
Once the adult has
been determined to be incompetent and a guardian(s) is appointed, the
guardian will receive a written order of appointment from the clerk.
This order explains the guardian's powers and duties. If the guardian
has questions about his powers and duties, he may direct them to the
clerk or to an attorney.
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Are there different kinds of guardians?
The clerk may appoint
a guardian of the person and/or a guardian of the estate, or a general
What are the powers
and duties of each type of guardian?
The specific powers
and duties a guardian may be given are found in North Carolina General
Statutes, Chapter 35A. Every guardian should have regular contact with
his ward and understand his needs, problems and strengths. The guardian
has a duty to make the best decisions he can for the ward so that the
ward's life is as comfortable, healthy and safe as possible. The guardian
also has the duty to permit the ward to participate as fully as possible
in all decisions that the ward is able to understand and participate
If the ward becomes
competent to make decisions for himself, the guardian has the duty
to petition the clerk to have the ward legally restored to competence.
Unless limited by
the clerk's order, a guardian of the person has authority
to make decisions in most areas of a ward's personal life, including:
- Deciding where
the ward will live. This decision should be based on the ward's preferences,
needs and resources. It may mean deciding the community the ward
will live in, whether the ward will live at home, in a group home,
nursing home or other living arrangement. Preference for where the
ward will live must be given to community based living situations
over institutional settings.
- Seeing that the
ward receives good care.
Arranging for any appropriate training, education, employment, habilitation
or rehabilitation that the ward may need.
- Giving consent
or approval for the ward to receive any needed services (medical,
dental, legal, psychological, etc.). The guardian may petition the
clerk of superior court for the clerk's agreement with the guardian's
decision about such consent. The guardian may not consent to the
sterilization of a ward with a mental illness or mental retardation.
- Taking reasonable
care of the ward's personal belongings.
- Taking any legal
action needed to protect the ward.
of the estate has authority to manage the ward's income
and property. He must keep good records and make regular reports
(annual accounts) to the clerk of superior court about the ward's
assets and all expenditures made on behalf of the ward from the
ward's estate. The guardian of the estate is required to post a
bond for the protection of the ward's estate. Certain actions,
such as the sale of the ward's property, require the clerk's prior
approval. A guardian of the estate (or general guardian) should
talk with the clerk of superior court or an attorney to find out
more about the legal requirements involved in managing a ward's
A general guardian has the powers and duties of both a guardian
of the person and a guardian of the estate.
What are a guardian's
A guardian is not
required to support the ward financially or to contribute his own resources
to the ward, and is not liable for the ward's debts. A guardian may
be reimbursed from the ward's estate for reasonable expenses incurred
in carrying out his duties as guardian. A guardian of the estate or
general guardian may also receive a commission set by the clerk from
the ward's estate for serving as guardian.
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does a guardianship end?
A guardianship, and
the guardian's powers and duties end when any of the following occurs:
- The ward dies
- The clerk of superior
court removes the guardian from his position
- The ward's competence
is restored; or
- The guardian resign
For more information
about guardianship contact your local Clerk of Superior Court's Office
or your county
DSS, area mental health agency, health department, or county
agency on aging.
July 9, 2013