Cary Incompetency Lawyer

Wake County Incompetency Ruling Attorneys

Most people know that an adult can act as a guardian for a child. Sometimes this happens when a child’s parents are momentarily unable to care for them. However, there are circumstances during which an adult can become a guardian over another adult.

This occurs when an adult is deemed incompetent by the courts and needs someone else to make significant decisions for them, including decisions about their education, living situation, health care, and other personal needs. Because of the complexities of these types of situations, it is important to retain the help of an incompetency lawyer to help you through this challenging time.

Guardianship over an adult is significant. It takes away an adult’s ability to make their own decisions, deeming them a ward, and puts another adult in a position of power over them. The courts do not take this lightly, which is why an adult must be found incompetent before a court will assign a legal guardian. To learn more about this type of relationship, contact a guardianship lawyer from Breeden Law Office today.

When is Guardianship Over an Adult Appropriate?

Before you consider starting incompetency proceedings in regard to a friend or loved one, it is important to look at when guardianship over an adult is typically appropriate. Some common situations that call for legal guardianship include when:

• Your severely disabled child turns 18 years old
• An elderly parent or grandparent is no longer mentally capable
• A loved one of any age suffers from a significant mental illness
• A loved one of any age suffers from a severe injury or disease

Guardianship proceedings are not appropriate when your family member is capable of making decisions regarding their own care, but you disagree with their choices. It can be difficult to watch a loved one struggle, be irresponsible, or take steps in life you do not approve of. However, guardianship is a significant step that should only be pursued when it is absolutely necessary for your loved one’s health, well-being, and safety.

North Carolina’s Standard for Incompetency

Under North Carolina General Statute (G.S.) §35A-1101, an incompetent adult is defined as: “any adult who lacks sufficient capacity to manage their own affairs or to make or communicate important decisions concerning their person, family, or property, whether that lack of capacity is due to mental illness, intellectual or development disabilities, epilepsy, cerebral palsy, autism, alcohol or drug addiction, senility, disease, injury, or another similar cause or condition.”

It is essential to realize a person could have one or more of these conditions and not be deemed incompetent. Your loved one may suffer from a mental illness yet still be capable of understanding their own affairs and making decisions. Your elderly parent may be in the beginning stages of dementia, yet still fit to make decisions for themselves.

Starting the Guardianship Process: Incompetency Proceedings

If you believe your loved one is incompetent and needs someone to care for them and make significant decisions on their behalf, then you may begin guardianship proceedings. This legal action asks the court to declare someone incapable of managing their personal or financial affairs. Navigating this legal matter can be difficult, particularly since you must follow all of your county’s relevant court procedures.

Family Disagreements and Legal Guidance

The matter can also become complicated if your loved one or other family members disagree with your stance. These disagreements can lead to delays, contested hearings, or emotional strain on family relationships. Instead of attempting to navigate this process yourself, it is best to work with an experienced incompetency attorney who can outline the guardianship process and explain your rights and your loved one’s potential defenses.

Filing the Petition and Serving Notice

You must file a complete petition for guardianship with the Clerk of the Superior Court. Immediately following filing this petition, you must properly serve the allegedly incompetent adult, otherwise known as the respondent. Proper service ensures the respondent is aware of the proceedings and has a chance to respond.

Notifying Family Members

You may also need to serve the respondent’s closest family members. For instance, if you are attempting to gain guardianship over an elderly parent, you may need to serve your parent’s surviving spouse, siblings, or your own adult siblings. This requirement ensures all interested parties are informed and given an opportunity to participate or object.

The Role of the Guardian ad Litem

Incompetency proceedings are not one-sided. The respondent is entitled to their own lawyer, and the clerk of the court will appoint them a guardian ad litem (GAL). This is a professional who will review the situation and meet with the respondent in order to evaluate what may be in their best interests. The GAL does not represent the petitioner or the court, but rather serves as an advocate for the respondent’s best interests. The GAL reports their findings to the clerk.

Presenting Evidence of Incompetency

Since you are alleging the respondent is incompetent, you will need evidence. This typically includes one or more physician’s statements. These medical evaluations should describe the respondent’s condition, diagnosis, and ability to make decisions. Depending on the situation, the clerk may require one or more additional evaluations of the respondent prior to the hearing.

Sometimes circumstances change. We can help you update your guardianship in North Carolina.

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Right to Additional Evaluations

You or the respondent can also request additional evaluations and receive written reports of the results. Having multiple opinions can help clarify complex medical or psychological concerns. Keep in mind that the respondent will also have the opportunity to present evidence of their competency during the hearing.

The Clerk’s Role and the Hearing Process

The clerk of the court acts as the judge for an incompetency proceeding, though the respondent can request a jury. The clerk will carefully review the evidence presented by both you and the respondent to determine if the respondent is incompetent. The burden of proof lies with the petitioner, who must show that the respondent is unable to manage their personal or financial affairs due to a physical or mental condition.

Possible Outcomes of the Hearing

If the evidence does not support a finding of incompetency, then your petition will be dismissed. If there is enough evidence of incompetency, then the clerk will hear arguments regarding who should be appointed as guardian. The clerk does not have to appoint you simply because you filed the petition. They will consider what arrangement serves the respondent’s best interests and whether another family member or professional guardian may be more appropriate.

Appointment of a Guardian

Once a competent adult is appointed guardian, they will receive a written order regarding the appointment, which will outline the powers and duties. The guardian’s authority may be limited or broad depending on the respondent’s needs, and they must regularly report to the court.