When Is an Adult Guardianship Needed? What’s the Process?

Robert Seidel
Estate Planning and Elder Law Attorney

Hope for Caregivers

If your spouse, parent, or loved one is unable to manage their own health care or financial decisions, the first step is to determine if they have a Health Care Power of Attorney and a Durable Power of Attorney.  But what do you do if your loved one doesn’t have these documents? What next?

It may be time to consider an adult guardianship proceeding. In a guardianship proceeding, you are petitioning the court to be appointed as guardian on behalf of your loved one (referred to as “the ward” in legal terms).

In North Carolina, Guardian of the Person refers to an individual appointed to make health care and general welfare decisions. A Guardian of the Estate is a person appointed to manage financial affairs. If both are needed, then often, the same individual may be appointed as General Guardian and have the power to handle all health care, welfare, and financial affairs on behalf of the Ward.

Guardianship proceedings are handled by the clerk or assistant clerk of the Superior Court in the Special Proceedings division.

Who Can Petition to Be Appointed as Guardian?

Any individual, such as a relative, friend, medical provider, or State or local agency, may file a guardianship petition with the court. The individual who files the petition is referred to as the “petitioner.”

What’s the First Step for Filing a Petition?

The process starts with filing a Petition for the Adjudication of Incompetence with the clerk of Superior Court in the Special Proceedings division in the county where the alleged incompetent (the “responder”) resides. The petition requires information about where the responder resides, facts supporting the need for guardianship, contact information for the responder’s next of kin, and information about the respondent’s finances. The petitioner must take an oath before a notary public or the clerk of court. The petition must be accompanied by a $120 filing fee and a $30 fee for the sheriff’s office.

What is the Sheriff’s Role in a Guardianship Proceeding?

The Petition for Adjudication of Incompetence must be personally delivered to the respondent by a sheriff. For many, this is an emotional and difficult step if you are filing for guardianship of a loved one. Fortunately, the sheriffs keep this problem as simple as possible. An officer will arrive at the respondent’s place of residence and hand them a copy of the Petition.

What is a Guardian Ad Litem?

In a guardianship proceeding, the court will appoint a Guardian Ad Litem to represent the respondent’s best interests. The Guardian Ad Litem (GAL) will visit the respondent to discuss the respondent’s wishes. The GAL will then present his or her findings to the clerk of court during the guardianship hearing.

How Long Will It Take To Get a Hearing?

Generally, the hearing will be held between 15-30 days after the respondent is personally served with the petition by the sheriff. In some instances, the clerk may push the hearing further out if more time is needed for a multidisciplinary evaluation.

What if a Guardian is Needed Immediately?

In some instances, the Petitioner or the Guardian Ad Litem may petition the court of appointment of an interim guardian and a hearing will be held within 15 days or sooner. A clerk may also initiate the appointment of an interim guardian if the clerk deems it to be in the respondent’s best interests. Typically, the clerk’s order for appointment of the interim guardian will limit the interim guardian’s powers to only those needed to address the respondent’s immediate needs. The Interim Guardian ends either (1) on the date specified by the clerk; (2) after 45 days; (3) when a guardian is appointed, or (4) when the case is dismissed. The clerk may also extend the interim guardian an additional 45 days.

Will the Court Appoint an Attorney to Help Me With the Petition?

No. The court will appoint a Guardian Ad Litem to meet with the respondent and represent the respondent’s wishes to the clerk. However, the court will not appoint an attorney to help you with the petition or the guardianship process. If you need assistance, you will need to hire an attorney. Similarly, the respondent may also hire an attorney to contest the petition and represent the respondent’s best interests in the proceeding.

What Happens During a Guardianship Hearing?

The Guardianship Hearing (referred to as an “Incompetency Hearing”) will be held by the court. During the hearing, the petitioner and respondent can present testimony and evidence to make their case. The burden is on the petitioner to provide clear and convincing evidence that the respondent is incompetent. As this is a court hearing, the North Carolina Rules of Civil Procedure and Rules of Evidence apply.

When Does the Clerk Make a Decision?

At the conclusion of the hearing, the clerk may make a decision or may order a multidisciplinary evaluation before making a decision.

What is a Multidisciplinary Evaluation (MDE)?

During the guardianship process, the clerk can order a Multidisciplinary Evaluation (MDE). The evaluation may include medical, psychological, social work, education, vocational rehabilitation, occupational therapy needs of the respondent.

How Does the Clerk Decide Who Will Be Appointed as Guardian?

The clerk’s decision will be based on the best interests of the ward/respondent. The order of priority that the clerk generally considers is: (1) an individual recommended under the will of the deceased parent of an unmarried child; (2) an individual; (3) a corporation; or (4) a disinterested public agency such as the Department of Social Services.

Can the Clerk’s Decision Be Appealed?

Yes. If you disagree with the clerk’s decision, an appeal may be filed in writing within 10 days of the clerk’s decision. If an appeal is filed, there will be a new hearing before a superior court judge.

Are You Caring for an Aging Parent or Family Member?

As a caregiver, you know better than anyone that good help and clear guidance is hard to find.

You may be struggling to find and pay for long-term care services, hitting roadblocks and waitlists in trying to get your loved one placed in an appropriate facility, or constantly fighting with doctors, hospitals (or even other family members) because you don’t have the necessary legal or financial authority to oversee your loved one’s affairs and/or care.

Solid legal and financial planning is your answer and can help you put an end to all of the confusion and overwhelm that you currently face.

Our free Caregiver’s Guide is here to help. Request your copy here or call us at 919-443-3035 to discuss how we can help.