Understanding Guardianship in North Carolina: A Guide to Chapter 35A
At Fiduciary Litigation Group, we recognize that the decision to seek guardianship is one of the most difficult a family can make. It is a process that balances the protection of a loved one with the preservation of their fundamental civil liberties. Based in Chapel Hill, our firm provides expert guidance across North Carolina for those navigating these complex legal and emotional waters.
The Legal Foundation: Chapter 35A
In North Carolina, guardianship is governed by Chapter 35A of the General Statutes, supplemented by rulings from our Court of Appeals and Supreme Court.
It is important to begin with a word of caution: As Americans, we cherish our individual freedoms. Because a guardianship proceeding can restrict a person’s right to make their own decisions, the law treats these cases with the utmost gravity. It is a remedy intended only when absolutely necessary and always in the best interest of the individual.
How Guardianship Proceedings Work
A guardianship case is heard before the Clerk of Superior Court in the county where the alleged incompetent person (referred to legally as the “Ward”) lives. These proceedings are bifurcated, meaning they happen in two distinct parts:
The Adjudication of Incompetence
The first step is a hearing to determine if the individual is truly “incompetent” under the law. This must be proven by clear and convincing evidence—a higher standard than most civil cases. Because this involves a potential loss of rights, Clerks of Court approach this duty with profound seriousness.
The Appointment of a Guardian
If, and only if, the Clerk finds the individual incompetent, the proceeding moves to the second phase: choosing who will serve as the guardian.
The Four Types of Guardians in North Carolina
Not every situation requires the same level of intervention. North Carolina law provides for different roles based on the Ward’s needs:
Key Players and Procedures
The Guardian ad Litem (GAL)
Upon filing a petition, the Clerk will appoint a Guardian ad Litem (GAL), who is an attorney. Unlike a traditional attorney-client relationship where the lawyer follows the client’s instructions, a GAL’s duty is to investigate the facts and advocate for the Ward’s best interest. Even if the Ward wishes to remain independent, the GAL may recommend guardianship if they believe it is necessary for the Ward’s safety.
The Multi-Disciplinary Evaluation (MDE)
To provide the Clerk with objective data, the court may order an MDE. This is a comprehensive assessment conducted by professionals, typically including:
- A Neuropsychologist or Psychiatrist (mental status).
- An Internist (physical health).
- An Occupational Therapist (ability to perform daily living tasks).
The Right to a Jury
While these hearings usually take place before the Clerk, the Ward has the right to request a trial by a six-member jury. The Ward also has the right to retain their own private counsel in addition to the court-appointed GAL.
The “Dimmer Switch” Metaphor
Incompetency is rarely a “toggle switch” that is either fully on or fully off. It is more like a dimmer switch. Many people find themselves in a “gray area”—perhaps in the early-to-mid stages of dementia—where they are functional in some ways but vulnerable in others. “Legal” incompetence is not a medical diagnosis; it is a legal determination made by the Clerk based on the evidence presented.
The Emotional Reality: Risks and Rewards
We often see guardianship sought by an earnestly concerned child looking to protect a parent. However, the process can be stressful:
- Protection vs. Perception: A Ward may be influenced by others to believe the Petitioner is acting out of greed. In reality, guardianship is the least effective way to take advantage of someone, given the strict court oversight and mandatory reporting.
- Family Dynamics: Sadly, guardianship disputes can lead to “predatory” family members attempting to alienate the Ward from the concerned Petitioner. This can sometimes result in the Ward changing their estate plan or disinheriting those trying to help them.
Navigating a guardianship requires a blend of legal strategy and delicate communication. We have years of experience representing:
• Petitioners seeking to protect a vulnerable loved one.
• Wards who wish to retain their own counsel to protect their rights.
• Family Members whose interests may be affected by the proceedings.
If you are facing a difficult situation regarding the competence of a loved one, you do not have to walk this path alone. Contact Fiduciary Litigation Group today to discuss how we can help protect your family’s future.