Guardianship is the process of petitioning the court for the authority to manage the finances and/or care of an adult who is unable to manage his or her own affairs or communicate important decisions regarding his/her care. Such incapacity may be due to mental illness, retardation, injury or disease. Merely having a disability or disease or making poor or irrational decisions is not enough to establish incompetency.
There are two main factors. First, the Clerk of Court must make a determination that the adult lacks competence and is in need or guardianship. Then, the Clerk determines who is best able to fill this role. This may or may not be the person who files the guardianship petition.
In North Carolina, there are three types of guardianship:
- Guardian of the person – authority over personal decisions such as where the Ward (the incompetent adult) lives, or medical care to be rendered. A guardian of the person has no control over the Ward’s finances.
- Guardian of the Estate – authority to make financial decisions and controls the Ward’s money and assets. A guardian of the estate has no authority to make medical decisions or determine living arrangements.
- General Guardian – combines the powers of guardian of the person and guardianship of the estate.
Step 1: Complaint - file a formal Petition for Guardianship with the Clerk of Superior Court in the county where the Respondent (proposed ward) lives. This petition must include information alleging incompetence and showing why the Respondent needs a guardian.
Step 2: Service - serve a copy of the petition to: the Respondent, and his/her close family members
Step 3: Guardian ad Litem - Clerk of Court appoints an attorney to represent the Respondent
Step 4: Evaluation - Clerk may order a medical and psychological evaluation of the Respondent
Step 5: Incompetency Hearing – both sides present evidence to the Clerk
Step 6: Decision - Clerk determines competency
Step 7: If the Clerk finds that the Respondent is competent a guardian will be appointed
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