Plan ahead to survive the incompetency and guardianship process

The number of persons aged 65+ in North Carolina increased 25.7% between 2000 and 2010. Between 2010 and 2030, North Carolina’s 65+ population is projected to increase by over 400,000 persons per decade, reaching 2.14 million by 2030. — NC Office of State Budget and Management

More and more boomers are faced with the daunting challenge of caring for their parents because the safety net for older adults is facing imminent threats. Social Security, Medicare and Medicaid programs will potentially decrease benefits to elderly Americans, thus increasing the responsibility of adult children to manage their parents lives as they struggle with Alzheimer’s disease and dementia. The United States government and local governments have attempted to adapt to these necessary changes, but the system has become even more difficult to understand. It is important to find an attorney that knows the relevant laws and system because the incompetency and guardianship process can be difficult and stressful.

As a hypothetical, imagine an elderly member of your family is showing signs of dementia. She cannot take care of herself and is living in unsanitary conditions, but due to the onset of dementia she refuses care. Moreover, due to her dementia she is confrontational about accepting assistance from you or anyone in her home. What do you do?

The hypothetical is becoming a common challenge due to the growing elderly population. In North Carolina, the legal system provides an option to have an individual declared incompetent and a guardian appointed, either an individual, corporation, or public agent. See N.C. Gen. Stat. §35A-1112 and N.C. Gen. Stat. §35A-1214. The person filing the petition is the petitioner, and the petitioner is often a family member that has the best interests in mind of their family member, the respondent.

An incompetency and/or guardianship hearing is conducted in front of the Clerk of Court as either a bench trial or a jury trial. The petitioner and respondent are entitled to present testimony and documentary evidence, so the proceeding is much like any other court case. In North Carolina, the petitioner pays the filing fee and sometimes the guardian ad litem costs, but the petitioner is not required to pay some of the costs as long as they have reasonable grounds for their action. Moreover, if the respondent is declared incompetent, the respondent or their estate will likely be charged the guardian ad litem’s attorney fees and costs.

The respondent will be appointed a guardian ad litem, which is a member of the local Bar. The guardian ad litem should perform a thorough study of the individual’s current mental state, but the guardian ad litem is unlikely to favor the petitioner because “The guardian ad litem shall present to the clerk the respondent’s express wishes at all relevant stages of the proceedings.” See N.C. Gen. Stat. §35A.

At the first scheduled court date the petitioner can move that the Clerk order a physician to perform a multi-disciplinary report on the individual. The multi-disciplinary report is a basis for the Clerk to decide whether the respondent is incompetent in the opinion of a trained medical professional.

N.C. Gen. Stat. §35A-1112(d) provides in relevant part that “If the finder of fact, whether the clerk or jury, finds by clear, cogent, and convincing evidence that the respondent is incompetent, the clerk shall enter an order adjudicating the respondent incompetent.”

N.C. Gen. Stat. §35A-1112(e) on guardianship provides in relevant part that “Following an adjudication of incompetence, the clerk shall either appoint a guardian” or transfer it to the appropriate county to appoint the guardian.

If the Clerk or jury finds the respondent incompetent, the Clerk will issue an Order setting forth the nature of the guardianship and name of the guardian, powers and duties of the guardian, and the identity of the agency, if any. The Clerk can also order a limited guardianship based upon the nature and extent of the ward’s incompetence. N.C. Gen. Stat. §35A-1215. The best option for a guardian is an accountable and responsible individual capable of handling the ward’s financial, legal and medical issues.

These proceedings are contentious if attorneys are representing the parties. The process can be worthwhile if the petitioner has the best interests in mind so that the respondent can receive the care they need. All parties to this proceeding should take their role seriously by seeing the big picture of what is likely to occur, especially in the case of an elderly family member, as it is too late to begin this process once an incident occurs which leads to a quick death.

In some cases the solution is proper estate planning. All adults should have a Health Care Power of Attorney, Durable Power of Attorney, and Will. In a properly drafted power of attorney the option is provided to nominate a potential guardian. This becomes important if a doctor declares their patient incompetent, at which point the patient’s power of attorney takes effect, including the nominated guardian. In this scenario, proper estate planning likely prevents a costly court battle.

The number of elderly North Carolinians with Alzheimer’s Disease is projected to increase from 170,000 in 2010 to 210,000 in 2025. —Alzheimer’s Association, 2010 Alzheimer’s Disease Facts & Figures

Disclaimer: This information is only applicable to North Carolina. We strongly recommend that you consult with a licensed attorney concerning your matter.

Author’s Note: The above is presented as general information. It is not exhaustive coverage of this issue but only a general explanation from an attorney’s perspective. The purpose of this article is to inform the non-lawyer of the issue in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.