Raleigh Incompetency Lawyer

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.

Call attorney Jonathan Breeden at (919) 661-4970.

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.

Incompetency Proceedings

If you believe your loved one is incompetent and needs someone to care of them and make significant decisions on their behalf, then you may begin guardianship proceedings. Navigating this legal matter can be difficult, particularly since you must follow all of your county’s relevant court procedures.

The matter can also become complicated if your loved one or other family members disagree with your stance. 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.

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.

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.

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 represents the respondent and reports their findings to the clerk.

Since you are alleging the respondent is incompetent, you will need evidence. This typically includes one or more physician’s statements. Depending on the situation, the clerk may require one or more additional evaluations of the respondent prior to the hearing.

You or the respondent can also request additional evaluations and receive written reports of the results. Keep in mind that the respondent will also have the opportunity to present evidence of their competency during the hearing.

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.

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.

Once a competent adult is appointed guardian, they will receive a written order regarding the appointment, which will outline the powers and duties.