Guardianship

Under G.S. Chapter 35A, proceedings for adjudication of incompetence and appointment of a guardian may be brought for incompetent adults and children at least age 17 ½ and incompetent by reason other than their minority. Incompetency is defined in G.S. 35A-1101(7)(8).

Guardianship involves the provision of services to individuals who are alleged to be incompetent and their families. It includes legal proceedings in which an adult is declared incompetent by the court and another party is given responsibility for duties relative to the adult’s personal affairs and/or property. The nature and scope of a guardian’s responsibility are determined by the court, based on applicable provisions of the law and the circumstances of the individual case. Guardianship ends with the death of the incompetent adult or with a judicial restoration of the adult’s competency.

Authority

The legal determination that an adult is incompetent means that the adult is considered incapable of making important decisions concerning his/her personal welfare and/or financial resources. Authority may be given to a guardian to make decisions such as:

  • Where the adult will live, including the geographical area
  • Type of living arrangement
  • How the adult’s income will be spent
  • Whether the adult will have recommended medical treatment or surgery

To the extent that the guardian is given authority over these and other areas of the adult’s life, the adult no longer has the right to make decisions in those areas. Because of the effect of declaring an adult legally incompetent and giving his/her authority to make decisions to a guardian, guardianship should be considered only when other, less drastic methods of assisting adults are not sufficient.

Decisions

An incompetent adult’s relatives, and others personally concerned with the adult’s welfare, should be encouraged to assume primary responsibility for planning for guardianship. The agency’s role should include providing information about guardianship and alternatives to guardianship to help the family in deciding:

  • On the most appropriate course of action
  • Providing specific information about what is expected of a guardian
  • Helping the family to determine which family member should serve as guardian
  • Assisting the family in initiating and participating in the guardianship court proceedings when the family’s decision is to pursue guardianship
  • Acting as an ongoing resource to the family when assistance is needed in implementing and carrying out the court’s guardianship order.

There Are Three Types of Guardians

  • Guardian of the Person: A guardian of the person is appointed “solely for the purpose of performing duties related to the care, custody and control of a ward”. [G.S.35A-1202(10)]
  • Guardian of the Estate: A guardian of the estate is appointed “solely for the purpose of managing the property, estate and business affairs of a ward.” [G.S. 35A-1202(9)]
  • General Guardian:General guardian’ means a guardian of both the estate and the person. [G.S. 35A-1202(7)]

The clerk of court may also order that a limited guardian be appointed. If the clerk orders a limited guardianship as authorized in [G. S. 35A-1212(a)] the clerk may order that the ward retain certain legal rights and privileges to which the ward was entitled before the ward was adjudged incompetent. [G. S. 35A-1215(b)]

Additional Information

Please contact Adult Services unit at 336-849-7910, if you need additional information on Guardianship. Ask for the adult service intake worker.