Filing for Incompetence and Guardianship
Western Highlands Network does not file petitions for guardianship on individuals being served in our eight county area. Although WHN does provide Guardianship we do not actively seek out referrals. We have contracted with two other Guardianship agencies, ARC and Hope for the Future and both agencies are currently at capacity. The agencies we contract with also do not file petitions for guardianship.
In some cases the necessity of guardianship may be avoided through advance planning and the use of alternatives to guardianship. Some of these alternatives could be having a representative payee, joint bank accounts, durable power of attorney, health care power of attorney, declaration regarding natural death (living will),advance instructions for mental health treatment (advance directives), advocacy, case management, and trusts.
For individuals who may need guardianship, a family member can contact an Attorney who can petition the court. In many cases agencies or family members can also file petition to recommend a Guardian to the court. The family member, relative or agency filing must have a recommended guardian and one that is supported by the team, medical doctor or through an evaluation. Individuals who wish do file a petition for guardianship of an individual should not do so if it presents a conflict of interest for the respondent. WHN does not accept in house referrals through this process but have listed the steps below on how to establish guardianship through the court process for individuals who have an approved recommended Guardian and one that is willing and able to carry out this responsibility.
There are 4 types of Guardianship
1) Limited Guardianship- sometimes one of the best “alternatives” to full or plenary guardianship. The clerk would determine that if the potential ward is capable of retaining certain rights and privileges, they may award this type of guardianship. Rights that could be maintained by the respondent may include Health Care, Personal safety, Residential, Employment, Independent living, etc…
2) General Guardianship-sometimes referred to as “full” or “plenary” guardian has authority and responsibility of the ward estate.
3) Guardian of the person- has authority and responsibility only for the care and custody of the ward.
4) Guardian of the Estate- has authority and responsibility only for the estate of the ward.
The petitioner would need to select the type of guardianship that would best serve the individual. For example, in most cases if the individual does not have property or an estate but may receive SSI, then the Guardian of the Person may be the best option.
Rights retained by individual
Please note that even though an individual may have a guardian the individual may retain the following rights.
1) Vote
2) Marry
3) Make a Will
4) Be a witness in court, if they understand the nature of his or her oath to tell the truth and has capacity to observe, remember and relate the matters about which he or she will testify
5) Enter a valid contract if they have sufficient capacity to understand the nature and consequence at the
time they entered into the contract. Contracts are not automatically voided, and can be challenged.
6) File for divorce. A guardian may not sue for divorce on behalf of the individual
7) Have appointed qualified guardian
8) Without the consent of their guardian, to file a legal action seeking restoration of their capacity.
Filing with the Court
The petitioner or agency would have to contact the Guardian ad litem (located at the County Courthouse.) The petitioner or agency would need to let the GAL know they want to set up a hearing with the Clerk of Court and requests that a Guardian ad litem be appointed to represent the respondent. If they agree and most are, then the petitioner would put that name and address on the petition and notice of hearing. (Referenced below) They would also need to get a date that the GAL would be available for court. That's the date you would use for court on the petition and generally set 3-4 weeks out in order to give time for others to be noticed. Note this process may vary from county to county.
Forms needed to be filed with the Court
AOC-SP-201- Notice of hearing on incompetence
AOC-SP-200- Petition for Adjudication of incompetence and application for interim Guardian.
AOC-SP-208- Guardianship Capacity Questionnaire
Forms are filled out and taken to the courthouse and clocked in. Other paperwork from a Doctor recommending Guardianship and why would be attached and/or evaluations indicating the need for Guardianship would also be presented and clocked in at the Court.
They'll need to list on the petition each next of kin such as mother, father or adult brother(s) and sister(s). The petition and notice also needs to be sent to the GAL. Each individual noticed should also be sent the notice and the petition.
The respondent (the identified individual who may need a guardian) is served by the Sheriff's Dept. So that notice and petition would have to be taken to the Sheriff's Dept by the petitioner or agency.
All others can be notified by certified mail or registered mail. Instructions to the Petitioner on delivery of notice and petition are located at the bottom of the Notice form. It is important to bring proof to court of notification of the hearing to each individual served. Fill out the Certificate of Service form AOC-SP-207 which is located at www.nccourts.org under the forms section and bring to Court the day of the hearing and present it to the Clerk of Court. Also bring the receipts from delivery of mail to Court. The Sheriff Dept will send their notice back to the court on the respondent.
You cannot recommend someone to the court or recommend an agency unless they are willing and able. The Clerk of Court will make the final ruling whether an individual is in need of a Guardian. The Court must also find clear, cogent and convincing evidence that the respondent is incompetent; if this has been determined then the Clerk will appoint a Guardian.
Forms needed to Qualify as Guardian
When the Clerk of court has appointed a Guardian he or she will issue and order. The Guardian then must qualify with the Estates and Probate section of the Court. The following is a list of paperwork needed to be filled out beforehand and presented to the Estates and Probate Department. Contact the Estates and Probate Department to make an appointment to qualify on the Guardianship case. If you do not know the name of the Clerk of Superior Court for the county involved contact the Court for that information. You will need the Clerk of Superior Courts name to put on the Letter of Appointment document.
Oath/Affirmation-AOC-E-400
Application for letter-AOC-E-206
Order on Application-AOC-406
Order Authorizing Issuance of Letter- AOC-E-402
Estates Action Cover sheet-AOC-E-650
Letter of Appointment- AOC-E-408
All forms are located at www.nccourts.org
Should you have some basic questions regarding the forms you can contact Veronica Sulkowski, Care Coordinator/Guardianship Coordinator at
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Reference- NC Guardianship Association Manual
North Carolina Court system
