Adult incompetency proceedings, also know as guardianship cases, consist of two parts. Both parts are court proceedings in Probate Court or before the Clerk of Superior Court in North Carolina. The Clerk of Superior Court is also the Probate Judge in North Carolina.
There are two major parts of the guardianship case. The first is whether the adult person who is the subject of the case is an incompetent adult. The basic definition is that they are unable to make and communicate important decisions regarding their person, family, or property. They can be found to be partially incompetent or unable to manage their affairs, or partially competent and partially incompetent. This is a new addition to the North Carolina law and is a little bit like being somewhat pregnant. It’s an awkward version of “cutting the baby in half.”
If the Court determines that the subject adult is an incompetent adult, then the question is who should be their Guardian. This is the part of the case that is closer to a custody case. There may be several members of a family, or others, seeking to be appointed the Guardian for the incompetent adult. They could be asking to be General Guardian (where they are in charge of both the assets and what happens to that person’s placement), or they could just be asking to be in charge of the money (i.e., Guardian of the Estate), or just the person (i.e., Guardian of the Person).
The Court, after determining the adult is in fact incompetent, then determines who would be, in the best interests of the incompetent adult, appointed as Guardian. This, again, is in essence a custody case where multiple people may be vying to be appointed as Guardian of the incompetent adult. The Clerk of Superior Court a/k/a Probate Judge hears all the evidence and determines if the subject individual is an incompetent adult and, if so, then appoints a Guardian for both their assets and their person or possibly one or the other.
These cases can be contested and may even involve a jury. They are appealed to the Superior Court of that county.
It is much better, if at all possible, to deal with the mental disability in the client’s Living Trust.
Also, this points out the dramatic importance of having the right people set up as your Trustees and Health Care Powers. If you place the wrong people in control who don’t have your best interests at heart, but whatever their emotional or financial interests are instead, you can create disaster.
At the Law Firm of Steven Andrew Jackson, Attorney and Counsellor at Law, we have helped hundreds of families protect themselves and their loved ones, avoid Estate Taxes and Probate Costs, and keep their Estate Plans current with the law through The Customized Protective Estate Planning Solution™.