Written by Jonathan Breeden
It’s a common question for families across North Carolina, struggling with a loved one who is suffering from mental illness or other limitations.
If someone you love is no longer capable of caring for themselves, it may be time to have them declared incompetent and to appoint a guardian. Guardianship may be appropriate in a wide range of cases. The authority to decide when a person needs a guardian rests with your local court. If you want to appoint a guardian for someone, you will need to convince the clerk that guardianship is needed by proving that person’s incompetence.
To declare someone incompetent or determine if it’s the right decision, contact an incompetency lawyer from Breeden Law Office today. Call (919) 661-4970, or reach out online to schedule a consultation.
With over 20 years experience and local offices in Raleigh, Garner, Angier, and Smithfield, attorney Jonathan Breeden has helped countless families in North Carolina successfully deal with guardianship issues. Let us review your situation and explain the process of declaring someone legally incompenetent.
Incompetence is listed under North Carolina General Statutes (NCGS) § 35A-1101 (7). The statute creates two situations when a person might be declared incompetent:
North Carolina las consistently held that poor judgment, wastefulness, or eccentricity do not meet the definition of incompetence. According to Hagins v. Redevelopment Commission of Greensboro, a person is incompetent when he is “incapable of transacting the ordinary business involved in taking care of his property, if he is incapable of exercising rational judgment and weighing the consequences of his acts upon himself, his family, his property and estate, he is incompetent to manage his affairs.”
Therefore, someone’s incompetence doesn’t depend on the practical results of their decisions. Rather, it is based on their fundamental ability to rationally make choices and to act on them.
For example, believing that a person is wasting all of their money isn’t enough to show incapacity. Instead, you’ll need to show evidence of incompetence, such as the person lacks the physical or mental ability to write a check or open and read bills.
Any interested person may open proceedings to declare a person incompetent. All you need to do is draft a petition for incompetency.
The petition must contain your name, address, and your specific interest in the case, such as whether you are a friend, relative, or business associate of the person whose incompetency you are alleging.
The person who you seek to declare as incompetent is called the respondent. Your petition must list their full name and address. It’s also necessary to list other interested persons, like the respondent’s other family members, close friends, or business associates. Finally, the petition should detail the facts that demonstrate the respondent’s incompetency, and show what is at stake by listing the respondent’s assets and property.
You must file the petition for incompetency with the Clerk of the Superior Court. The clerk will decide whether or not the respondent is incompetent within 30 days of receiving the petition.
If the respondent does not (or cannot) retain a lawyer, the clerk may appoint one to act as guardian ad litem to represent the respondent.
At the incompetency hearing, the clerk will listen to the evidence presented by the petitioner and the respondent. In some cases, the clerk may require a multidisciplinary evaluation to determine the psychological, medical, and social well-being of the respondent. At the conclusion of the hearing, the clerk will decide if the respondent is competent or incompetent.
North Carolina’s guardianship laws are strict, but they may be necessary to protect your lived one. A person judged incompetent in some areas of their life may be allowed to retain autonomy in other areas. In addition, guardianship orders may be terminated or modified as circumstances change.
If a loved one is having trouble taking care of themselves, it may be time to consider guardianship. A compassionate and knowedgable family lawyer can help determine and execute the best possible guardianship arrangement.