Education Law Attorney Durham, North Carolina

File for Adult Guardianship

Guardianship provides a way to protect a person who is incapable of caring for himself and/or his financial affairs when other methods such as health care powers of attorney, living wills, durable financial powers of attorney, trust funds, etc. have not been arranged or have otherwise proven not to be helpful.

We provide the following guardianship services:

  • Petitions to declare a disabled adult incompetent
  • Motions to modify (change guardians or restore rights to the ward)
  • Petitions to appoint a guardian for a minor of deceased parents
  • Petitions for ancillary guardianship to manage a ward's North Carolina property
  • Act as Agent for Service of Process for out of state guardians
Below is a list of questions clients often have about guardianship.

When is guardianship appropriate?

According to North Carolina law, guardianship is appropriate when an adult, an emancipated minor, or a minor who is at least 17 1/2 years of age, who other than by reason of minority, lacks sufficient capacity to manage his affairs or to make or communicate important decisions concerning himself, family, or property, whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause. N.C. Gen. Stat. § 35A-1101.

Who can file for the guardianship?

Although the guardianship statute allows "any interested person" to file for guardianship, typically family members, care providers, or social workers will be filing.

How do you file for guardianship?

A guardianship case starts with the filing of a petition. The petition is a form that is can be completed on-line or at the Office of Clerk of Court located in your county courthouse. The Special Proceedings division of the Office of Clerk of Court handles guardianship cases until a person is determined to be incompetent.

Who is involved in a guardianship proceeding?

The person who files the petition is called the petitioner. The person who is alleged to be incompetent in the petition is the respondent. Other family members or interested persons may also attend the guardianship hearing or provide information. The Guardian ad Litem is an attorney appointed to represent the interests of the respondent. The Clerk of Court (or an Assistant Clerk of Court) is the finder of fact who determines whether the respondent is incompetent and appoints a guardian. He or she can also issue other orders such as order to release medical records or for a special evaluation of the respondent called a multi-disciplinary evaluation. Sometimes the petitioner or the respondent hires an attorney to advocate for their position.

What are the types of guardianship?

For adults, there are three types of guardians:

  1. A guardian of the person makes decisions about medical care, education, and residential placement.
  2. A guardian of the estate handles money or property decisions.
  3. A general guardian is both a guardian of the person and of the estate.
A guardianship may be limited to allow the respondent to retain his decision making authority if he is competent to make decisions in one or more of the major areas of his or her life.

Do I need to hire an attorney to file for guardianship?

That depends upon a number of factors: the condition and the wishes of the respondent, the wishes of family members, the type of guardianship you are seeking, the evidence you have showing the respondent is incompetent, and your comfort with handling the proceeding on your own.

Guardianship cases can be highly contested and emotional. You may be required to present evidence at the hearing. Even if you are not an attorney, you will still be required to follow the same rules that attorneys follow including the rules of evidence. You may be required to subpoena witnesses and medical records, present the testimony of your witnesses through questions (called direct testimony), ask the respondent's witnesses questions, and so forth. The proof you must have in a guardianship case is higher than most civil cases.

Guardianship hearings can be informal, especially if everyone involves believes a guardianship is necessary.

If you are unsure about how to proceed, you should consult an attorney.

Do I have to serve as guardian if I file the petition?

NO! You do not have to serve as guardian if you do not want to or are unable to. While it is preferable to have someone who knows the respondent well, if there is no one who can act as guardian, you can request a public guardian be appointed.

What is the guardianship process?

When you file the petition, you will be given a court date and the name of the Guardian ad Litem. You should call the Guardian ad Litem to provide him or her with information about the respondent. He or she will visit with the respondent to determine their needs and wishes. If the respondent is living with you, you may need to arrange for the Guardian ad Litem to meet with the respondent. You should ask the Guardian ad Litem to let you know what his or her recommendation will be. If he or she says the respondent does not seem to need a guardian, you will need to prepare your evidence for the hearing.

At the hearing, the Clerk or Assistant Clerk will hear the Guardian ad Litem's report (a written report will be provided to the court), hear any testimony and argument, and determine if the respondent is incompetent. If the clerk finds that the respondent is incompetent, he or she will prepare a written order saying the respondent is incompetent, and appoint a guardian. The guardian will go with the Clerk or Assistant Clerk to the Estates division to complete paperwork and be sworn in as guardian. The guardian will take an oath and post a bond if necessary. Finally, the guardian will be issued Letters of Guardianship.

What are The Letters of Guardianship?

These are the papers that give the guardian authority to act as guardian. A guardian should always keep these handy as he or she will need to provide them to doctors, schools, financial institutions, and care providers.

Is there any guidance for guardians?

The Administrative Office of Courts has published a booklet to assist guardians called Responsibilities of Guardians in North Carolina  that is an excellent source of information about the rights and responsibilities of guardians.

What if a person under guardianship no longer needs the guardianship or the guardian is unable to continue serving as guardian?

Either you or any interested party can file a Motion to Modify.  Once again, a Guardian ad Litem will be appointed to determine what the respondent needs and wants, and will make a recommendation to the court