North Carolina Incompetency Petition and Guardianship + Letters Package

NORTH CAROLINA INCOMPETENCY PETITION AND GUARDIANSHIP — PACKAGE

PART 1 — PRE-PETITION CHECKLIST (Counsel Worksheet — NOT FILED)

☐ Confirm respondent is an adult (18+) or emancipated minor OR an "incompetent child" who is at least 17.5 (§ 35A-1101(7)-(8))
☐ Confirm respondent resides in or is present in the filing county (§ 35A-1103)
☐ Verify respondent meets "incompetent adult" definition (§ 35A-1101(7)): lack of capacity due to mental illness, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar condition AND is unable, even with a less restrictive alternative, to manage affairs or communicate important decisions
☐ Less restrictive alternatives MANDATORY analysis (§ 35A-1101(11a)):
☐ Supported decision-making (added 2018)
☐ Appropriate and available technological assistance
☐ Representative payee
☐ Power of attorney (health care or finances)
☐ Health Care POA (G.S. 32A-15 et seq.)
☐ Trust
☐ Joint accounts
☐ Adult Protective Services (DSS)
☐ Determine if Interim Guardian needed (§ 35A-1114) — imminent or foreseeable risk
☐ Identify proposed guardian type: General / Person / Estate / Limited
☐ Identify next of kin for notice (§ 35A-1109)
☐ Determine bond amount (§ 35A-1230 et seq.)
☐ Anticipate request for Multidisciplinary Evaluation under § 35A-1111
☐ Confirm whether respondent can afford counsel — if not, GAL appointment auto under § 35A-1107
☐ Filing fee (per current AOC schedule); jury trial fee if jury demanded

PART 2 — PETITION FOR ADJUDICATION OF INCOMPETENCE (AOC-SP-200 EQUIVALENT)

STATE OF NORTH CAROLINA
COUNTY OF [____________________]
IN THE GENERAL COURT OF JUSTICE — SUPERIOR COURT DIVISION
BEFORE THE CLERK

PETITION FOR ADJUDICATION OF INCOMPETENCE AND APPOINTMENT OF GUARDIAN

Petitioner, pursuant to N.C.G.S. §§ 35A-1101 et seq., shows the Court:

1. Petitioner.

2. Respondent.

3. Jurisdiction and Venue. Respondent resides in [____________________] County, North Carolina. Jurisdiction is conferred on the Clerk of Superior Court under N.C.G.S. § 35A-1103.

4. Facts Demonstrating Incompetency. Petitioner alleges that Respondent is an incompetent adult within the meaning of N.C.G.S. § 35A-1101(7) because:

☐ Mental illness
☐ Intellectual disability
☐ Epilepsy
☐ Cerebral palsy
☐ Autism
☐ Inebriety
☐ Senility / dementia
☐ Disease
☐ Injury
☐ Similar cause: [______________________]

Specific diagnoses: [______________________]
Description of Respondent's incapacity (with specific recent examples): [______________________]
Date capacity loss became apparent: [__/__/____]

5. Less Restrictive Alternatives (MANDATORY analysis per § 35A-1101(7), (11a)):

Petitioner has considered the following less restrictive alternatives and finds Respondent is unable to manage affairs or to make/communicate important decisions even with these alternatives:

6. Existing Powers of Attorney / Fiduciary Instruments: [☐ None known] [☐ Attached as Exhibit 1: [______________________]]

7. Proposed Guardian.

8. Estate of Respondent (if estate or general guardianship sought):

9. Next of Kin and Other Persons Entitled to Notice (§ 35A-1109): Listed on Schedule A.

10. Multidisciplinary Evaluation. [☐ Petitioner requests appointment of a Designated Agency to prepare a Multidisciplinary Evaluation pursuant to N.C.G.S. § 35A-1111] [☐ Not requested at this time].

11. Interim Guardian. [☐ Not requested] [☐ Requested under N.C.G.S. § 35A-1114 because of the following imminent or foreseeable risk: [______________________]].

WHEREFORE, Petitioner prays:

A. Notice of Hearing issue to Respondent and to next of kin (§ 35A-1108);
B. A Guardian Ad Litem be appointed for Respondent pursuant to § 35A-1107;
C. [☐ A Multidisciplinary Evaluation be ordered per § 35A-1111];
D. The Clerk adjudicate Respondent incompetent by clear, cogent, and convincing evidence (§ 35A-1112);
E. [______________________] be appointed [☐ Guardian of the Person] [☐ Guardian of the Estate] [☐ General Guardian];
F. Letters of Appointment be issued upon Oath and approved Bond.

VERIFICATION (G.S. 1A-1, Rule 11):
I, [______________________], being duly sworn, depose and say that the facts stated in this Petition are true to my own knowledge except as to matters alleged on information and belief, and as to those I believe them to be true.

Sworn to before me on [__/__/____].

Submitted by: [______________________], Attorney for Petitioner; NC Bar No. [______________________]

PART 3 — SCHEDULE A: NEXT OF KIN AND PERSONS ENTITLED TO NOTICE (§ 35A-1109)

☐ No qualifying next of kin — list the nearest known adult relatives or interested parties.

PART 4 — ORDER APPOINTING GUARDIAN AD LITEM AND COUNSEL (§ 35A-1107)

The Clerk of Superior Court, pursuant to N.C.G.S. § 35A-1107, FINDS that Respondent is entitled to a Guardian Ad Litem and to counsel, and ORDERS:

1. [______________________], a member of the North Carolina State Bar in good standing, is appointed Guardian Ad Litem to represent Respondent in this proceeding.
2. The GAL shall personally visit Respondent, explain the proceeding and Respondent's rights, investigate the matter, and represent Respondent at the hearing.
3. If Respondent expresses a desire to retain private counsel and has the means to do so, the GAL shall report that fact to the Clerk.
4. GAL compensation set at $[__________] per hour, payable from [☐ Respondent's estate] [☐ State funds if indigent].

PART 5 — NOTICE OF HEARING WITH STATEMENT OF RIGHTS (§ 35A-1108)

TO: [RESPONDENT FULL LEGAL NAME]

A PETITION HAS BEEN FILED IN THE OFFICE OF THE CLERK OF SUPERIOR COURT OF [____________________] COUNTY, NORTH CAROLINA, ASKING THE CLERK TO DECLARE THAT YOU ARE INCOMPETENT AND TO APPOINT A GUARDIAN TO MAKE DECISIONS FOR YOU.

A hearing will be held:

(Notice must be issued within 5 days after filing and the hearing held not less than 10 days nor more than 30 days from service — § 35A-1108(a))

YOUR RIGHTS UNDER NORTH CAROLINA LAW

1. Right to be present at the hearing (§ 35A-1112).
2. Right to counsel of your own choice; if you cannot afford one, the Clerk will appoint a Guardian Ad Litem to represent you (§ 35A-1107).
3. Right to a jury trial on the question of incompetency if timely requested.
4. Right to present evidence, subpoena witnesses and documents, and cross-examine witnesses (§ 35A-1112(b)).
5. Right to request a closed hearing (§ 35A-1112(a)).
6. Right to a Multidisciplinary Evaluation under § 35A-1111 at public expense if indigent.
7. Right to insist that incompetency be proven by CLEAR, COGENT, AND CONVINCING EVIDENCE (§ 35A-1112(d)).
8. Right to have the Clerk consider less restrictive alternatives before adjudication (§ 35A-1101(7), (11a)).
9. Right to nominate the guardian of your choice (§ 35A-1213).
10. Right to seek restoration of competency at any time (§ 35A-1130).
11. Right to appeal the adjudication to Superior Court (§ 35A-1115).
12. Right to a Spanish or other-language interpreter and disability accommodations.

EFFECT OF ADJUDICATION

If the Clerk adjudges you incompetent and appoints a guardian, you will lose the legal right to make decisions about your person, property, and family to the extent specified in the order. You may lose the right to vote (unless restored), to contract, to marry, to drive, to consent to medical treatment, and to manage your money.

PART 6 — NOTICE TO NEXT OF KIN (§ 35A-1109)

TO: ALL NEXT OF KIN AND PERSONS LISTED ON SCHEDULE A

A Petition for Adjudication of Incompetence has been filed concerning [RESPONDENT NAME]. A hearing will be held on [__/__/____] at [____:____] [☐ a.m.] [☐ p.m.] before the Clerk of Superior Court at [______________________]. You may attend and participate. A copy of the Petition is attached.

PART 7 — MULTIDISCIPLINARY EVALUATION (§ 35A-1111) — REQUEST AND CONTENT

REQUEST. Petitioner / Respondent / Clerk on own motion requests that [____________________] (the "Designated Agency") prepare or assemble a Multidisciplinary Evaluation under N.C.G.S. § 35A-1111 to address Respondent's:

☐ Medical condition
☐ Psychological / psychiatric condition
☐ Adaptive / functional behavior
☐ Educational, vocational, and social condition
☐ Existing support system
☐ Less restrictive alternatives evaluation

The MDE shall be filed with the Clerk at least ten (10) days before the hearing and served on Respondent and Petitioner.

Cost. $[__________], to be paid by [☐ Respondent] [☐ State if indigent].

PART 8 — LESS RESTRICTIVE ALTERNATIVE ANALYSIS (Mandatory under § 35A-1101)

The 2018 amendments (S.L. 2018-47) require that a respondent be found incompetent only if unable to manage affairs "by means of a less restrictive alternative." Petitioner submits:

A. Functional Domains Assessed:

1. Personal care / medical: [______________________]
2. Residence: [______________________]
3. Property — routine: [______________________]
4. Property — major: [______________________]
5. Family / social: [______________________]

B. Supports Available / Tried / Insufficient: [______________________]

C. If a less restrictive alternative is partially sufficient, basis for LIMITED guardianship request: [______________________]

PART 9 — OATH AND BOND OF GUARDIAN (§ 35A-1230 et seq.)

OATH OF GUARDIAN

I, [______________________], appointed [☐ Guardian of the Person] [☐ Guardian of the Estate] [☐ General Guardian] of [WARD NAME], do solemnly swear (or affirm) that I will well and truly perform the duties of my office according to the laws of North Carolina and the orders of this Court.

Sworn before me on [__/__/____].

BOND (required for Guardian of Estate / General Guardian per § 35A-1230):

PART 10 — NOTICE OF HEARING (RESET / SECOND-STAGE GUARDIAN APPOINTMENT)

Following adjudication of incompetence, notice of the appointment-of-guardian hearing shall be given pursuant to § 35A-1216.

PART 11 — ORDER ADJUDICATING INCOMPETENCE AND APPOINTING GUARDIAN (§§ 35A-1112, 35A-1130)

The matter coming on for hearing on [__/__/____] before the undersigned Clerk of Superior Court; Respondent [☐ being present] [☐ being represented by Guardian Ad Litem] [☐ being represented by private counsel]; the Clerk having considered the Petition, the Multidisciplinary Evaluation, the GAL Report, and the evidence;

THE CLERK FINDS by clear, cogent, and convincing evidence:

1. Respondent is an incompetent adult under N.C.G.S. § 35A-1101(7) by reason of [______________________].
2. Respondent cannot, by means of a less restrictive alternative, adequately manage affairs or make/communicate important decisions.
3. [______________________] is qualified to serve.

IT IS ORDERED:

A. Respondent is ADJUDICATED INCOMPETENT.
B. [______________________] is appointed [☐ Guardian of the Person — § 35A-1241] [☐ Guardian of the Estate — § 35A-1251] [☐ General Guardian].
C. Powers of Guardian of the Person:
☐ Custody and control; establish place of residence
☐ Provide for care, comfort, and maintenance
☐ Consent to medical, psychiatric, and dental care
☐ Apply for benefits
☐ Authority to make end-of-life and DNR decisions consistent with G.S. 90-322
☐ Other: [______________________]
D. Powers of Guardian of Estate / General Guardian:
☐ Take possession and control of all real and personal property of ward
☐ Receive income and pay debts
☐ Invest prudently consistent with G.S. 36C
☐ Bring and defend actions
☐ Sale of real property only with prior Clerk approval per § 35A-1301 et seq.
☐ Other: [______________________]
E. Rights RESERVED to Ward (limited guardianship): [______________________]
F. Bond set at $[__________].
G. Letters of Appointment shall issue upon Oath and approved Bond.
H. Initial Inventory required within 3 months (§ 35A-1261).
I. Annual Accounting required (§ 35A-1264).
J. Guardian of Person Status Report required as ordered by Clerk.

PART 12 — LETTERS OF APPOINTMENT

LETTERS OF [☐ GUARDIANSHIP OF THE PERSON] [☐ GUARDIANSHIP OF THE ESTATE] [☐ GENERAL GUARDIANSHIP]

STATE OF NORTH CAROLINA, COUNTY OF [______________________]

These Letters certify that on [__/__/____], by Order of the Clerk of Superior Court of [____________________] County, File No. [______________________], [______________________] was appointed and qualified as [☐ Guardian of the Person] [☐ Guardian of the Estate] [☐ General Guardian] of [WARD NAME], an incompetent adult, and is authorized to exercise the powers granted in the Order of Appointment.

Limitations: [______________________]

PART 13 — INITIAL INVENTORY AND ANNUAL ACCOUNTING REFERENCE

Initial Inventory (§ 35A-1261): Due within 3 months of qualification; itemize all real and personal property of the ward; signed under oath.

Annual Accounting (§ 35A-1264): Due within 30 days after each anniversary; itemize receipts, disbursements, and asset balances; vouchers required.

Status Reports (Guardian of the Person): As ordered by Clerk; describe ward's living arrangements, health, services received, and recommendations.

Sale of Real Property (§ 35A-1301 et seq.): Requires special proceeding before Clerk; cannot be done unilaterally by guardian.

SOURCES AND REFERENCES

• N.C.G.S. Chapter 35A (Incompetency and Guardianship)
• N.C. Administrative Office of the Courts forms (AOC-SP-200, AOC-SP-201, AOC-SP-202, AOC-E-403 et al.)
• UNC School of Government, Incompetency Determinations (Sara DePasquale)
• N.C. Session Laws 2018-47 (less restrictive alternatives mandatory)
• N.C. Department of Health and Human Services, Adult Protective Services
• G.S. 32A (Powers of Attorney)
• G.S. 32C (Uniform Power of Attorney Act)
• G.S. 90-322 (end of life / extraordinary care)

END OF NORTH CAROLINA INCOMPETENCY AND GUARDIANSHIP PACKAGE