Written by Jonathan Breeden
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 an appropriate solution in a wide range of cases. The authority to decide when a person needs a guardian rests with the clerk of 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.
If you are wondering how to declare someone incompetent, or if it’s the right decision for you and your family, contact an incompetency lawyer from Breeden Law Office today for help. Call (919) 661-4970, or reach out online to schedule a case evaluation.
The definition of incompetence is listed under North Carolina General Statutes (NCGS) § 35A-1101 (7). The statute creates two situations under which a person might be declared incompetent:
North Carolina courts have consistently held that poor judgment, wastefulness, or eccentricity do not meet the definition of incompetence. As one court put in the case of 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.”
Thus, a determination of someone’s incompetence doesn’t depend on the practical results of their decisions, but on their fundamental ability to rationally make choices and to act on them. Showing the court that a person is wasting all of their money doesn’t show incapacity. But demonstrating that a person doesn’t have the physical or mental ability to write a check or open and read bills might be more convincing evidence of incompetence.
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 will need to list their full name and address. It’s also necessary to list other interested persons in the case, such as 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 at a hearing within 30 days of receiving the petition. If the respondent does not (or cannot) retain a lawyer, the clerk may appoint a lawyer to act as guardian ad litem to represent the respondent in the proceedings.
At the incompetency hearing, the clerk will listen to 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 has several laws regarding guardianship. A person judged incompetent in some areas of their life may be allowed to retain their autonomy in other areas. Furthermore, 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 good lawyer can help your family determine and execute the best possible guardianship arrangement.
To learn more about how to declare someone incompetent, call Breeden Law Office at (919) 661-4970 to schedule a consultation, or reach out via our online form.