When Should You Consider Filing for Guardianship of an Incapacitated Adult in North Carolina?
1. Detailed Answer
In North Carolina, you may need to file for guardianship when an adult cannot manage personal, financial, or medical decisions due to mental or physical impairment. Under North Carolina law, an “incapacitated person” is someone whose ability to receive information or make or communicate decisions is impaired to the extent that they lack the capacity to meet essential requirements for their health, safety, or self-care. See N.C. Gen. Stat. § 35A-1101.
Guardianship is a serious intervention that assigns a court-appointed individual (the guardian) the legal authority and duty to make decisions on behalf of the incapacitated adult (the ward). You should consider filing for guardianship in North Carolina when:
- Medical professionals determine the adult cannot understand information or communicate decisions about personal care, living arrangements, or treatment.
- The adult refuses or cannot manage their medications, leading to health risks.
- They lose the ability to handle financial obligations, pay bills, or protect assets.
- They face undue influence, exploitation, or financial abuse by others.
- No less restrictive alternatives—such as a durable power of attorney or health care power of attorney—are in place or sufficient.
The guardianship process in North Carolina (Chapter 35A, Article 3) begins by filing a petition in the clerk’s office of the superior court of the county where the proposed ward resides. The petition must include:
- A physician’s or psychologist’s certificate stating the adult’s incapacity.
- Information about the proposed ward’s medical condition and functional limitations.
- Notice to the proposed ward and close family members.
After the petition is filed, the court sets a hearing. At the hearing, the judge reviews evidence, hears testimony from medical experts, the proposed ward, and family or concerned parties. If the court finds that the adult is incapacitated and that guardianship is necessary and appropriate, it issues letters of guardianship. These letters grant the guardian authority as specified by the court, which may be limited or full authority over personal care and/or finances. See N.C. Gen. Stat. § 35A-1105.
Because guardianship removes certain rights from the ward, North Carolina law requires the court to consider less restrictive alternatives first. You should discuss options such as:
- Durable powers of attorney.
- Health care powers of attorney.
- Representative payeeships for Social Security benefits.
2. Key Considerations Checklist
- Medical evaluation: Has a qualified professional documented cognitive or physical impairments?
- Decision-making gaps: Is the adult unable to understand or communicate choices about daily living or finances?
- Risk factors: Are there signs of neglect, self-harm, or exploitation?
- Existing documents: Are there valid powers of attorney or trusts in place?
- Family consensus: Do close relatives agree on the need for guardianship?
- Least restrictive approach: Have you explored every less restrictive alternative first?
- Emergency needs: Does the adult require an interim guardian for urgent medical or financial decisions?
Get Advice from Pierce Law Group
Deciding to seek guardianship for an incapacitated adult in North Carolina is a significant step. Pierce Law Group’s attorneys have extensive experience guiding families through this process with care and clarity. Let us help you determine the best path—whether that involves guardianship or a less restrictive alternative. Contact us today by email at intake@piercelaw.com or call (919) 341-7055.
