iStock_000052687846_Large-1024x734INCOMPETENCY AND GUARDIANSHIP PROCEEDINGS

If a person becomes unable to manage his affairs and has not taken the legal steps to name someone to act on his behalf, the Clerk of the Superior Court will hold one or more proceedings to 1) determine if the person is incapacitated and to what extent and 2) if warranted, to appoint a guardian to manage the “ward’s” finances, general decision making and/or his health care decision making. The ward may retain some authority for decision making depending on the Clerk’s findings. North Carolina is the only state in the nation where a person can be declared incapacitated by a person who is not a judge or even an attorney, since the Clerk of Court is an elected position without those requirements.

There are multiple parties involved in the guardianship process: 1) the Petitioner, who files the petition alleging a person is incompetent and needs a guardian (it may be the Department of Social Services or any interested party); 2) the Respondent, the person who is alleged to be incapacitated and no longer able manage his or her affairs; and 3) Family members who must be given notice of any court proceeding and allowed to participate and present evidence. Our office is able to represent any of these parties.

Once appointed, the Guardian must account to the Court on an annual basis of his actions on the Incapacitated Ward’s behalf. The Guardian must also petition the Court for permission to do many of the basic acts of managing the Ward’s property.

Guardianship proceedings can be stressful, expensive and highly volatile. It involves many confusing steps with specific rules and deadlines. You can almost always avoid this by planning in advance and picking the right person who will act in your best interest (See Estate Planning).