Guardianship and Incompetency

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Adults are presumed legally competent to handle their own affairs. If you believe an adult or minor who is about to turn 18 is unable to manage his/hers own affairs or make or communicate important decisions, due to injury or mental health issues, a petition may be filed before the Clerk of Superior Court to have the person adjudicated incompetent and to have a legal guardian appointed. 

After the Petition is filed with the Clerk, a competency hearing will be scheduled and a Guardian ad Litem (attorney) will be appointed by the court to represent the interests of the Respondent (alleged incompetent person). The Guardian ad Litem is responsible for meeting with the alleged incompetent and reporting to the Clerk about the needs and desires of the individual. The hearing will typically take place a few weeks after the Petition is filed unless there are extenuating circumstances that require an expedited interim hearing. Such circumstances arise when the alleged incompetent’s current situation is a threat to his or her physical or financial well-being. All parties to the case along with the next of kin to the alleged incompetent must be served with the Petition and Notice of Hearing. Typically, next of kin includes the spouse, parents, children, and/or siblings. The Respondent must be served personally by the Sheriff’s department. 

This is a bifurcated process, meaning there are two phases to the legal proceeding. First, the court must determine whether the Respondent (alleged incompetent adult) is incompetent by clear, cogent and convincing evidence. If the Respondent is deemed to be incompetent as the term is defined in the law, then the proceeding continues. The second (and final) phase of the proceeding is to determine what kind of guardian is necessary and if the Petitioner is qualified to serve as Guardian. The three (3) types of Guardianship are Guardian of the Person, Guardian of the Estate, and General Guardian. 

An adjudication of incompetence results in the loss of some, if not all of the basic rights of the incompetent adult depending on the circumstances of the case. Every alleged incompetent has the right to be heard by the court and the Petitioners must provide clear, cogent, and convincing evidence that a guardian is necessary. 

If a guardianship has already been established and you would like to file for a modification of the court order or restoration of competency, a Motion in the Cause to Modify Guardianship needs to be filed and a hearing will be held before the Clerk of Court. 

As with all judicial proceedings, the Clerk’s Office is forbidden by law from offering any legal advice and it is strongly recommended that you seek competent legal counsel to assist you. 

Filing Fees: It is $120.00 to commence a special proceeding to have an adult deemed incompetent. If there is sufficient evidence to deem the adult incompetent, then an estate proceeding is commenced through an Application for Letters of Appointment which also has a filing fee of $120.00.

Guardianship of the Person

The Guardian of the Person has the authority to make decisions regarding medical care and treatment, placement, and all other decisions regarding the care, custody and control of the Ward.  This type of guardian does not have the authority to handle financial matters or property.

Guardianship of the Estate

The Guardian of the Estate has the authority to handle financial matters on behalf of the Ward. They do not have any of the powers of the Guardian of the Person- to make decisions regarding the care, custody or control of the Ward. A Guardian of the Estate must post a surety bond to protect the Ward’s assets from mismanagement or fraud. This bond acts like an insurance policy, and the Guardian will have to pay a premium with the insurance company providing the bond on the amount necessary to offer sufficient protection. This amount is based on the value of the Ward’s personal property and is set by state law. 

Additionally, a Guardian of the Estate is required by law to file an inventory of the Ward’s assets within 90 days of qualification and annual accountings with the Clerk’s office. These annual accountings are audited and must be approved by the Clerk. You will need to file proof of assets held, income received, and amounts disbursed. 

*Guardianship of the Estate of a Minor: While parents are the natural guardians of their children, Guardianship of a Minor Child may be necessary when a minor receives a settlement or inheritance. Since minors cannot legally manage their own property, a Guardian of the Estate must be appointed to manage the minor’s estate until he or she reaches the age of majority. Guardianship and/or Custody of Minor is typically a Civil District Court matter.

General Guardianship

A General Guardian has the powers of both the Guardian of the Person and the Guardian of the Estate. As discussed in the Guardian of the Estate section, a surety bond, inventory and annual accountings must be filed with the Clerk's office since the guardian has authority over the Ward’s assets.

Involuntary Commitment

Please contact the Magistrate’s office at 252.475.9228 if you are seeking to have someone involuntary committed.