Submitted by kirksanderslaw on
What is involved in an incompetency and guardianship proceeding?
First, there is a determination whether the adult is incompetent to handle their own affairs?
If so, then after the clerk determines the ward is incompetent, there will be a hearing to determine who should be appointed 1) Guardian of the Estate & 2) Guardian of the Person
Guardian of the Estate manages the finances and assets of the ward. This guardian will make regular accountings to the clerk. All financial decisions are governed by what is in the “best interest” of the ward. A close of approximation of this role is an attorney-in-fact. This person must be bonded before they are granted letters to be guardian of the estate.
Sometimes guardianship proceedings are brought even though the ward previously named an attorney-in-fact. Reasons may vary, including concern that the appointed person by the POA (Power of Attorney) is failing to properly manage the ward (or principal’s assets and finances). These cases become more heavily litigated. Family members are the first to be considered to be appointed. When no one in the family is appropriate, then the clerk will consider outside persons, including the public administrator / public guardian.
Guardian of the Person is akin to an appointed health care power of attorney. This person makes medical decisions and determines whether a nursing home is appropriate for the ward.
The N.C. General Statutes, chapter 35A governs incompetency proceedings and guardianship proceedings. See https://www.ncleg.gov/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_35A.html
Process: These proceedings are begun with the filing of a petition with the clerk of court where the ward resides. The person whose incompetency is in question must be served with the petition and summons by the sheriff. All next of kin get mailed notice of the petition and the hearing date by first class mail.
All incompetencies and guardianships are heard before a clerk.
There are additional variations, such as a Limited Guardianship. This is when someone is capable of living on their own but is not capable of handling their financial affairs.
Some typical questions to determine whether a person is incompetent?
Is the person able to prepare food that requires cooking and mixing?
Does the person control toilet functions during the day?
Can the person reach emergency health care?
Can the person identify neglect and know what to do if neglected?
Can the person be left alone for periods up to 24 hours without being at risk?
Can the person identify his or her address and return home or seek assistance if lost or stranded?
Does the person know t source and amounts of monetary benefits he or she receives on a weekly, monthly or annual bsis?
Can the person identify and make change for $1, $5, and $20?
These are just a few of the typical questions surrounding competency. Failing one may not require a determination of incompetency.
The attorneys at Hendrick Bryant Nerhood & Sanders LLP handle NC guardianship proceedings.
Call Kirk Sanders at 336-723-7200 to assist your loved one in this matter.
Surry County guardianship; Stokes County Guardianships; Davie County Guardianships; Davidson County Guardianships; Yadkin County Guardianships, Forsyth County Incompetencies