Helping Families Navigate the Guardianship Process with Confidence

In North Carolina, adult guardianship is a legal process through which a court appoints a guardian to make decisions on behalf of an incapacitated adult (ward) who is unable to manage their own affairs. Guardianship matters are delicate situations that require careful consideration and compassion to help you and your loved ones make the necessary arrangements.

Guardianship preserves dignity and respect while ensuring necessary decisions are made when the ward is unable to do so. Working with our Concord guardianship attorneys who handle these designations brings peace of mind to what would otherwise be concerning situations.

If you have questions about the guardianship process or are ready to start legal proceedings, contact our Concord law office today to schedule a consultation.

What Are the Different Legal Types of Guardianship in North Carolina?

There are two main types of guardianship for incapacitated adults in North Carolina.

• Guardian of the Person: A guardian appointed to make decisions regarding the ward’s personal care, health, and living arrangements. A “guardian of a person” does not have the legal authority to manage the ward’s finances or their property, so any actions they take must be specifically to address the ward’s well-being.
• Guardian of the Estate: A guardian appointed to manage the ward’s financial affairs, assets, and property. A “guardian of an estate” is required to provide an annual accounting of all of the ward’s financial transactions with the Clerk of Court. This type of guardian has no legal power to make medical decisions or other matters related to the ward’s care.
• General Guardian: A general guardian has the legal authority to make decisions for the ward’s personal and financial needs.

It should be recognized that the court may grant guardianship based on the unique needs and conditions of the person in question and that outcomes in cases will vary.

Who Can File a Petition for Guardianship?

State law allows any interested person to file a petition requesting that an individual be declared incompetent and placed under guardianship. In guardianship cases, an interested person may include:

• Family members, including a spouse, children, parents, or other relatives
• A medical professional, such as a psychologist or physician
• A representative of a state facility or agency
• A director of a local Department of Social Services (DSS)

Anyone who is seeking to file a petition must do so with the Clerk of Superior Court in the county where the respondent resides.

It is worth emphasizing that although individuals are free to file a petition to have another person placed under guardianship, the respondent has the legal right to contest the guardianship proceedings.

When is an Adult Considered to be Incapacitated?

North Carolina law stipulates that an adult may be considered incapacitated if they are unable to manage their own affairs due to mental illness, intellectual disability, physical incapacity, or other factors. The court will determine the extent of the incapacity based on evidence provided during the guardianship proceedings.

State law requires that anyone asserting that another person should be placed under guardianship present clear and convincing evidence that the ward cannot manage or communicate essential decisions for their own care or financial needs.

Incapacity may be attributed to several factors, including:

• Mental illness
• Intellectual disability
• Habitual use of drugs or alcohol due to an incapacitating degree
• Physical illness
• Disease or injury
• Dementia or other degenerative diseases.

How are Guardianship Proceedings Initiated?

Guardianship proceedings are typically initiated by filing a “Petition for Adjudication of Incompetence and Application for Appointment of Guardian” to the Clerk of the Superior Court where the alleged incapacitated person resides. The petitioner may be a family member, friend, healthcare provider, or other interested party.

Whoever decides to file the petition must include a sworn statement that includes the facts demonstrating that the respondent lacks the competence to make or communicate their own wishes regarding their care or finances. The petitioner must also provide an estimate of the respondent’s assets and the respondent’s next of kin. The petitioner must also pay a court filing fee when the petition is filed.

After the petition has been filed, the petitioner will have to wait for an assigned hearing date. The clerk will set a date and time for a guardianship hearing, with most cases being heard within 30 days of the petition being served.

What is the Legal Process of Appointing a Guardian in North Carolina?

Once a petition is filed, a court hearing will be held to determine whether the adult is incapacitated and whether guardianship is necessary. At the hearing, the petitioner and respondent will present evidence to the Clerk of Superior Court, who will evaluate it and determine whether the respondent is incompetent.

If the court finds that guardianship is warranted, it will appoint a guardian, either an individual or a public or private agency, to act on behalf of the ward. A North Carolina court will only decide to declare an adult incapacitated if other arrangements, such as a power of attorney, are not sufficient for the respondent’s needs.

What are a Guardian’s Duties and Responsibilities?

Anyone who acts as a guardian in North Carolina has a legal and fiduciary duty to act in the best interests of the ward and to make decisions that promote the ward’s well-being and autonomy to the extent possible. The court outlines the specific duties and powers of the guardian, which may vary depending on the circumstances of the case. Acting outside of these duties could result in significant penalties, fines, and removal of guardianship responsibilities.

For those who are acting as a guardian who oversees the ward’s personal well-being, their responsibilities include:

• Ensuring that the ward has appropriate housing
• Supplying the ward with food, clothing, and other basic living needs
• Make medical decisions regarding care, as well as manage the ward’s medications
• Ensure that the ward receives an education

A guardian who oversees a ward’s estate has their own set of responsibilities, including:

• Making financial decisions and ensuring that the ward’s bills are paid
• Protects the ward assets, such as paying property taxes

What is the Court’s Role in Guardianship Cases?

North Carolina courts take a primary role in overseeing guardianship cases. Under the law, the Clerk of the Superior Court supervises guardianship arrangements to ensure that the guardian fulfills their duties and that the ward’s rights are protected.

Some of the primary responsibilities of the court in guardianship cases include:

• Determining incapacity by evaluating evidence presented by the petitioner and respondent
• Appointing a guardian, which may be an approved individual or agency
• Grants the guardian authority by issuing a court order and Letters of Guardianship that are authorized to act on behalf of the ward
• Supervises the guardian to ensure they act in the ward’s best interests. The court will also require the guardian to file regular reports and accountings of the ward’s finances.

When Can Guardianship Be Terminated or Modified?

North Carolina courts are deeply committed to ensuring guardianship cases are handled responsibly and fairly. Under the law, guardianship may be terminated or modified if the incapacitated adult regains capacity, the guardian is found to be unfit or unable to fulfill their duties, or circumstances change so that guardianship is no longer necessary.

State law also allows either a guardian or a ward to petition the court to terminate or modify the guardianship. In other instances, the court can make changes if it is determined they are in the ward’s best interests.

Termination of Guardianship

The court may terminate guardianship if any of the following situations occur:

• The ward dies
• The ward becomes fully capable of managing its own affairs
• The court removes the guardian

Modification of Guardianship

The court may exercise its legal authority to modify a guardianship for any of the following:

• The guardian is determined to be unfit, which can include them failing to perform their legal duties, mismanaging assets, or abusing their authority
• The court decides that another person would be better-suited to care for the ward’s needs
• The ward’s needs change, facilitating the need to appoint another guardian

Why Do I Need to Hire Guardianship Lawyers to Assist Me With My Legal Needs?

As with any legal matter, it is always best to hire Concord guardianship lawyers to help you with your legal needs. Guardianship cases can be complex and require substantial legal paperwork to complete and submit. Our Concord family lawyers can assist you with completing the paperwork correctly and turning it in promptly.

One of the most significant benefits of having lawyers is that they will understand your legal rights and explain how the court decides guardianship issues. Your lawyers will also act as your legal advocate and present evidence that substantiates your petition requesting guardianship.

It is also critical to recognize that the respondent has a legal right to have legal representation. The court will appoint a Guardian Ad Litem (GAL) to represent the respondent’s interests.

Your lawyers will also handle any contested legal issues that may be brought by other family members who may disagree with the guardianship proceedings. Having lawyers will also help manage your ongoing legal duties as a guardian, such as preparing the mandatory annual court reports.

Contact Meridian Law Group to Learn More About the Guardianship Process and How We Can Assist You

Guardianship is a serious legal matter with significant implications for the rights and autonomy of the incapacitated adult. Individuals involved in guardianship proceedings should seek guidance from qualified attorneys familiar with North Carolina’s guardianship laws. Meridian Law Office understands the legal complexities involved with handling guardianship needs and has a proven record of helping families when they need it most.

If you have questions about guardianship, contact our Concord guardianship lawyers today at (980) 409-2003 to schedule a consultation.