Skip to content

Understanding Guardianship in North Carolina

Guardianship is a legal process that allows a responsible person or organization to make important decisions for someone who is unable to do so themselves. In North Carolina, this process applies to individuals who have been declared legally incompetent by a court.

What Does Incompetency Mean?

Incompetency means that an individual is unable to manage their personal affairs or make important decisions due to a mental or physical condition. The court determines incompetency through a legal proceeding that includes medical evaluations and evidence.

Some common reasons a person may be declared incompetent include:

  • Severe mental illness (e.g., schizophrenia, bipolar disorder)
  • Dementia or Alzheimer’s disease
  • Developmental disabilities
  • Brain injuries
  • Severe substance abuse disorders

Guardianship applies to individuals who are at least 17.5 years old, as courts cannot declare a minor incompetent. However, parents of children with disabilities may begin the guardianship process before their child turns 18 to ensure continuity of care.

Types of Guardianship in North Carolina

There are three main types of guardianship: Guardian of the Person, Guardian of the Estate, and General Guardian.

Guardian of the Person is responsible for making decisions about an incompetent person’s personal well-being, including:

  • Approving or declining medical treatments
  • Deciding where the person will live (e.g., with family, a nursing home, or a group home)
  • Managing daily care needs
  • Making other personal and healthcare-related decisions

This type of guardian does not have control over the person’s finances.

Guardian of the Estate manages an incompetent person’s financial affairs, including:

  • Paying bills and handling assets
  • Managing income, including Social Security or disability benefits
  • Overseeing property and investments

The court requires the Guardian of the Estate to file annual financial reports to ensure proper management of funds. The reports include submitting receipts, cancelled checks, bank statements, and other evidence of how the funds were utilized. 

General Guardian has the responsibilities of both a Guardian of the Person and a Guardian of the Estate. This means they handle both personal care and financial management for the incompetent individual.

How to File for Guardianship in North Carolina

To begin the process, the petitioner (person filing the case) must file the following forms with the Clerk of Court:

There is a $120 filing fee and a $30 sheriff’s service fee, though these may be waived if the respondent (person the petitioner seeks to have deemed incompetent) qualifies as indigent.

The Role of the Guardian Ad Litem (GAL)

The court will appoint a Guardian Ad Litem (GAL), a court-appointed attorney who investigates the case and reports back to the court. The GAL evaluates the respondent’s best interests and makes a recommendation regarding guardianship. However, the final decision is up to the court, which may or may not follow the GAL’s recommendation.

Before filing the case, the petitioner should obtain a physician’s letter confirming the respondent’s diagnosis and need for guardianship. If obtaining this letter is difficult, the GAL can subpoena medical records. The petitioner and family should openly communicate with the GAL about the respondent and the case, as the GAL’s role is to advocate for the respondent’s best interest.

The GAL is compensated for their services. If the respondent is indigent, the State of North Carolina pays the GAL’s fees. If the respondent is not indigent, the GAL’s fees are paid by the respondent’s estate or by the petitioner.

Finalizing Guardianship

Once the GAL has completed their investigation, a hearing will be held before the county clerk of court. During the hearing:

  • Medical evidence and testimony should be presented to the court regarding the respondent’s competency.
  • The GAL will present their report and recommendations.
  • The court will make a decision based on all presented evidence.

If the court grants guardianship, additional forms must be filed to finalize the process.  Once finalized, the court will issue Letters of Guardianship, which legally authorize the guardian to act on behalf of the incompetent person. These letters should be provided to medical providers, financial institutions, and any other entities requiring proof of the guardian’s authority.

Conclusion

Guardianship is a serious legal responsibility that ensures individuals who cannot make decisions for themselves receive the care and protection they need. Whether you are seeking guardianship for a family member with a disability, an aging parent with dementia, or someone experiencing severe mental illness, understanding the process is essential.  

This article is for informational purposes only and does not constitute legal advice. If you need legal guidance regarding guardianship, consult with an attorney who specializes in guardianship law in North Carolina.