Guardianship of Incapacitated Adults: A Summary of North Carolina ...

Fundamentals of Social Services Law
November, 2004
John L. Saxon
Institute of Government, UNC-CH
III.
autism, or inebriety, or suffers from some other disease, injury, or
condition that impairs his or her capacity to manage his or her affairs or to
make or communicate important decisions regarding himself or herself, his
or her family, or his or her property.
b) Physical conditions that result in functional or behavioral impairments
generally are insufficient to establish incompetency unless they also result
in cognitive or communicative incapacity. See Goodson v. Lehmon, 224
N.C. 616, 31 S.E.2d 756 (1944). [Steven Hawking (a British astrophysicist
who suffers from amyotrophic lateral sclerosis (Lou Gehrig’s disease)) is
severely physically disabled and dependent on others for his physical
needs but is not mentally incompetent.]
c) Proof that an individual is mentally ill, mentally retarded, or senile, suffers
from cerebral palsy, autism, or inebriety, or suffers from some other
disease, injury, or condition is not legally sufficient, in and of itself, to
establish incompetency. The respondent’s mental or physical condition
must result in cognitive, communicative, functional, or behavioral
incapacity.
5. Incapacity
a) A person is incompetent to manage his or her affairs if his or her mental
condition is such that “he [or she] is incapable of transacting the ordinary
business involved in taking care of his [or her] property [or] is incapable of
exercising rational judgment and weighing the consequences of his [or
her] acts upon himself [or herself], his [or her] family, or his [or her]
property and estate.” Hagins v. Redevelopment Comm’n of Greensboro,
275 N.C. 90, 165 S.E.2d 490 (1969).
b) A person is not incompetent to manage his or her affairs if “he [or she]
understands what is necessarily required for the management of his [or
her] ordinary business affairs and is able to perform those acts with
reasonable continuity, if he [or she] comprehends the effect of what he [or
she] does, and can exercise his [or her] own will.” Hagins v.
Redevelopment Comm’n of Greensboro, 275 N.C. 90, 165 S.E.2d 490
(1969).
Guardianship Proceedings (Part I): Determining Legal Incapacity
A. Initiating a Guardianship Proceeding
1. Incompetency and guardianship proceedings as “special proceedings” in
superior court, not civil actions. The parties to a special proceeding involving
incompetency and guardianship are the petitioner and the respondent (the
allegedly incapacitated adult or ward).
2. The Clerk of Superior Court (CSC) (or an Assistant CSC designated by the
CSC) is the judge in special proceedings involving incompetency and
guardianship and has exclusive, original jurisdiction over all proceedings
seeking the appointment of a guardian for an allegedly incapacitated adult.
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