A person is free to spend his money as he chooses. If you suspect, however, that your uncle has a psychological condition or a medical condition that interferes with his ability to manage his daily affairs, then a guardianship is a way to protect him. The judge will need to be convinced that your uncle is legally incompetent before ruling that your uncle needs a legal guardian.
FAQ
The role of guardian is extremely important because a guardian steps into the shoes of the other person and has legal authority to make decisions for that person. This means that the other person has lost his right to make important decisions for himself. The scope of a guardian’s authority depends on whether the guardian is a guardian of the person, a general guardian, or a guardian of the estate.
The law defines “incompetent adult” as follows: “Incompetent adult means an adult who lacks sufficient capacity to manage the adult’s own affairs or to make or communicate important decisions concerning the adult’s person, family, or property whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition.”
You start by filing a Petition for Adjudication of Incompetency with the Clerk of Superior Court, Special Proceedings department. The Petition is a form in which you describe your specific reason(s) for believing that a guardianship is necessary.
You will get a hearing date for your case at the time you file the Petition. A Judicial Hearing Officer presides over guardianship hearings. The Hearing Officer serves as the judge and has the same full powers as a trial court judge. After the judge hears all the evidence, including medical and psychological information, a decision will be made.
The filing fee is $120, plus $30 for the sheriff’s service fee.
You, known as the PETITIONER will attend, as well as your attorney, if you have retained an attorney to help you. Also attending will be the person for whom you are seeking the guardianship, known as the RESPONDENT, and the GUARDIAN AD LITEM ATTORNEY for the RESPONDENT. Other family members or interested persons may also attend.
A guardian ad litem attorney is required by law to be appointed to represent the RESPONDENT. The role of the guardian ad litem attorney is to protect the rights of the RESPONDENT by thoroughly investigating the case and making a recommendation to the judge. This recommendation will inform the judge about the RESPONDENT’S personal background; the RESPONDENT’S medical history; the fitness of the PETITIONER to serve as guardian; and the RESPONDENT’S wishes. The guardian ad litem attorney also recommends what he thinks is in the best interest of the RESPONDENT.
You will be sworn in as guardian and receive Letters of Appointment. These Letters will verify to third parties, such as health care providers, financial institutions, or the Department of Motor Vehicles, to name a few, that you have legitimate authority to act on behalf of the RESPONDENT. The Letters will also describe the scope of your authority.
If the judge determines that the evidence presented at the hearing does not prove incompetency, then your PETITION is dismissed. The RESPONDENT retains his legal right to make his own decisions.
Not necessarily. People make decisions we do not agree with all the time, especially family members. A recent case I had provides a good example. The Respondent had terminal cancer. His medical history contained no issues with any mental illness, ever. The State, however, sought to have him declared incompetent. The Respondent in this case was a quirky, irascible fellow. He chose not to talk to the State’s representatives, but he was perfectly lucid when he talked to me. After two hearings, the judge determined that my client was not incompetent; therefore, he was free to check out of the nursing home and return to his own home.
As stated in a law case: “Incompetency to administer one’s own property ‘obviously depends upon the general frame and habit of mind, and not upon specific actions, such as may be reflected by eccentricities, prejudices or the holding of specific beliefs.’” Hagins v. Redevelopment Commission of Greensboro, North Carolina, 275 N.C. 90 (1969)
Yes.
Everyone, of course, has the right to represent himself in any legal matter. Understand, however, that incompetency hearings are full-blown legal hearings. The Rules of Civil Procedure and the Rules of Evidence apply. If you choose to proceed on your own, you are still expected to abide by these rules. The standard of proof required in these hearings is “clear, cogent, and convincing evidence.” This is a stringent level of proof, akin to the standard of “beyond a reasonable doubt” in criminal cases.
Would it behoove you to retain a lawyer? Yes. Would you set your broken leg? No. So why would you proceed without legal representation in a proceeding where you are asking the court to take away another person’s fundamental right to make his own decisions, his independence? Incompetency hearings are serious business. A lawyer with training and experience in this area of law understands the governing laws and procedure and will help you prepare for your court hearing.
Contact me to schedule an initial consultation. We will discuss your worries and concerns; look at the circumstances giving rise to your concerns; and explore options to safeguard your loved one.