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

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Fundamentals of Social Services Law November, 2004 John L. Saxon Institute of Government, UNC-CH 2. In assessing the respondent’s cognitive capacity, the issue is not whether the respondent’s cognitive abilities are impaired, subaverage, or suboptimal, but rather whether the respondent’s cognitive abilities are at least minimally sufficient to make important decisions regarding his or her person, family, or property. 3. Elements to consider in assessing cognitive capacity: awareness (extent of respondent’s capacity to perceive, concentrate, remember information); comprehension (ability to understand and assimilate information); reasoning (ability to integrate and rationally evaluate information); deliberation (ability to weigh facts and alternatives in light of personal values and potential consequences); choice (ability to express in a sufficiently stable and consistent manner one’s preference or decision). 4. Questions that might be asked in determining cognitive capacity: Can the individual communicate a definite decision or choice that is stable enough to be implemented? Can the person understand the facts that are relevant to the decision at hand? Can the person weigh relevant information based on his or her own values? Does the person appreciate the nature of the situation and the possible consequences of his or her decision? 5. Cognitive capacity is rarely an all or nothing matter. It therefore should be assessed on a “sliding scale” (see attachment). Less capacity is required with respect to simple decisions and in situations involving low risk and high benefit or minimal adverse consequences to the individual. More capacity is required with respect to complex decisions and in situations involving high risk and low benefit or significant adverse consequences to the individual. 6. A qualified professional may express his or her opinion with respect to the extent of the respondent’s cognitive (and communicative) capacity. Lay witnesses and the guardian ad litem may testify or present evidence that relates to the respondent’s cognitive and communicative capacity. 7. MDE should address respondent’s capacity to make and communicate important decisions regarding his or her person, family, and property. Screening tests (such as the Folstein MMSE) may be helpful but are not determinative, although a score of 18 or less strongly suggests diminished cognitive capacity. C. Functional Impairment 1. Functional and behavioral domains that should be considered: ability to manage property (investment, spending, disposition, etc.); ability to transact ordinary business; ability to make appropriate decisions with respect to shelter, nutrition, health care, personal hygiene, safety, etc. 2. Professional assessments that address the respondent’s capacity with respect to activities of daily living (ADLs include activities such as bathing, feeding, toileting, mobility, etc.) or instrumental activities of daily living (IADLs including activities such as managing medications, managing finances, meal 8
Fundamentals of Social Services Law November, 2004 John L. Saxon Institute of Government, UNC-CH preparation, use of telephone, etc.) may be useful in determining whether or to what extent the respondent is unable to manage his or her affairs. 3. The fact that a person is unable to care for himself or herself without the assistance of others due to a physically disability or impairment is not sufficient to support a finding of incapacity unless he or she also lacks the mental capacity to make appropriate decisions that would enable him or her to obtain necessary care or assistance from others. 4. As in the case of cognitive capacity, the issue in assessing the respondent’s functional capacity is not whether the respondent’s functional abilities are impaired, subaverage, or suboptimal, but rather whether the respondent’s functional abilities are at least minimally sufficient to ensure his or her own well-being. V. Guardianship Proceedings (Part II): Appointing a Guardian A. Application and Hearing 1. An application for appointment of a guardian for an incapacitated adult must be filed with the CSC. 2. Any person may file an application seeking the appointment of a guardian for an incapacitated adult. 3. In most cases, the application for appointment of a guardian is filed by the person or agency who files the petition seeking a determination that the respondent is legally incompetent and is filed as part of the original petition. An application for appointment of a guardian, however, may be filed by a person who is not the petitioner and may be filed subsequent to the petition or order adjudicating the respondent’s incapacity. 4. The person filing the application may nominate himself or herself as the ward’s guardian or recommend other potential guardians to the clerk. The CSC also may consider the recommendations of the ward’s next of kin or other persons with respect to who should be appointed as the ward’s guardian. 5. The CSC may not appoint a guardian for an adult unless the adult has been adjudicated legally incapacitated (incompetent). If an adult is adjudicated legally incapacitated, the CSC must appoint a guardian for the incapacitated adult. 6. The parent of an incapacitated adult may not appoint a person as the adult child’s guardian following the parent’s death by naming the person as the child’s guardian in the parent’s will. The “standby guardian” provisions in GS 35A, Art. 21 apply only with respect to guardians for minor children. 7. Before appointing a guardian, the CSC must “make such inquiry and receive such evidence as the clerk deems necessary to determine” the nature and extent of the guardianship and who can most suitably serve as the ward’s guardian. 9
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