An Overview of Adult Guardianship Proceedings in North Carolina

There may come a time when an adult is no longer able to manage his or her own daily affairs due to a disability, illness, or other medical issue. Under North Carolina law, a trusted person may be appointed as the ‘legal guardian’ of a vulnerable adult. An adult who is placed in the care of a guardian is called a ‘ward.’

Adult guardianship proceedings are notoriously complex. These matters should be handled with the highest degree of care, compassion, and sensitivity. At Arnold & Smith, PLLC, we want to ensure that families know their rights and obligations. In this post, our Charlotte wills & estate attorneys provide an overview to adult guardianship law North Carolina.

A guardianship is a legal relationship whereby one person becomes responsible for the care and well-being of another. Appointed by a court, an adult guardian asks on behalf of a person who, either temporarily or permanently, has lost the capacity to handle their own affairs. As explained by the North Carolina Judicial Branch, an adult guardian is “a surrogate decision-maker and an advocate” of the incapacitated person.

Pursuant to North Carolina state law, an adult guardian also has a responsibility to ensure that the vulnerable/disabled person is able to participate in their own affairs to the maximum extent practical, given their current mental comprehension and physical health. In some cases, a vulnerable adult may be fully incapacitated. They may not be able to have any role in decision-makers. In other cases, a vulnerable adult may still be able to give some input.

Obtaining an adult guardianship over another person is a big step. By definition, the court is taking away some of the vulnerable person’s rights and assigning them to their guardian. North Carolina courts do not appoint guardians lightly. The issue of competency is central in most adult guardianship proceedings. The court will only put an adult guardianship in place if the proposed ward (vulnerable adult) is deemed to lack the basic legal competency to manage his or her own affairs.

Under North Carolina state law (NC Gen Stat § 35A-1101), incompetency is defined as the lack of “sufficient capacity to manage the adult's own affairs or to make or communicate important decisions concerning the adult's person, family, or property.” Ultimately, adult guardianship proceedings are highly fact-specific cases. Most often, these issues come down to medical evidence and testimony by qualified professionals. A court must find legal incompetency before placing a person into the care of an adult guardian. If you have any questions about legal competency, an experienced North Carolina adult guardianship attorney can help.

North Carolina law recognizes the importance and necessity of adult guardianship. There are circumstances in which no other option is viable. An adult guardianship may be essential to protect the health, safety, and overall well-being of a disabled or otherwise vulnerable adult. When all criteria are met, North Carolina courts can and will put an adult guardianship in place.

That being said, the state also clearly favors the less restrictive alternative. Under North Carolina law (NC Gen Stat§ 35A-1242), a person or agency appointed as an adult guardian must submit a comprehensive status report within the first six months. Among other things, this status report should include the following two things:

• A report on any efforts made to restore the legal competency of the ward; and
• A report on any efforts made to seek less restrictive alternatives to an adult guardianship.

In other words, North Carolina law views an adult guardianship as a tool of last resort. If there are other less restrictive alternatives that can be used to effectively protect the health and safety of a vulnerable adult, then those less restrictive alternatives will be favored over a guardianship. Likewise, if there is any indication that a ward’s legal capacity can (or has been) restored, the court will consider terminating the adult guardianship.

At Arnold & Smith, PLLC, our North Carolina estate planning lawyers have the skills and legal expertise to handle the full range of adult guardianship matters. If you have any questions about adult guardianship proceedings, we can help. Contact our legal team now for a completely confidential initial case evaluation. From our legal offices in Charlotte, Monroe, and Mooresville, we serve communities throughout the region, including in Mecklenburg County, Anson County, Montgomery County, Gaston County, Lincoln County, and Catawba County.