A Guide to Wills, Estate, Trust and Guardianship Litigation

One of the most difficult decisions a family has to make is whether to file an action to appoint a guardian to take care of a loved one.  This situation often arises when elderly persons suffer from dementia.  However, situations do occur in which it is necessary to appoint a guardian at any stage of life.  Young, Moore, and Henderson haws a group of caring professionals who can help guide families through this difficult time.  The following is a summary of the rules that govern actions for guardianship in Wake County.

1) The clerk of superior court has original jurisdiction over leading legal proceedings to determine incompetency and to appoint a guardian for an incapacitated person. N.C. Gen. Stat. § 35A-1103(a); N.C. Gen. Stat. § 35A-1203(a). If the clerk of superior court has a conflict, the subject matter jurisdiction is vested in the superior court. N.C. Gen. Stat. § 35A-1103(d).

2) Any individual, corporation, or other person may file a verified petition seeking the determination of a respondent’s incapacity and the appointment of a guardian. N.C. Gen. Stat. § 35A-1104; N.C. Gen. Stat. § 35A-1210.

3) An incompetency proceeding is a Special Proceeding N.C. Gen. Stat. § 1-301.2(g)(1).

4) The parties to the proceeding are the petitioner and the respondent. N.C. Gen. Stat. § 35A­1109.

5) Copies of the petition and initial notice of hearing shall be personally served on the respondent. Respondent’s counsel or guardian ad litem shall be served pursuant toS. 1A-1, Rule 4, of the Rules of Civil Procedure. The petitioner, within five days after filing the petition, shall mail or cause to be mailed, by first-class mail, copies of the notice and petition to the respondent’s next of kin alleged in the petition and any other persons the clerk may designate, unless such person has accepted notice. Proof of such mailing or acceptance shall be by affidavit or certificate of acceptance of notice filed with the clerk. The clerk shall mail, by first-class mail, copies of subsequent notices to the next of kin alleged in the petition and to such other persons as the clerk deems appropriate. N.C. Gen. Stat. 35A-1109. The persons served by mail may make themselves parties by filing a motion in the action such as an application for appointment of a guardian (N.C. Gen. Stat. § 35A-1210) or by filing a motion in the cause (N.C. Gen. Stat. § 35A-1207).

6) Upon the filing of the petition an attorney shall be appointed as the guardian litem for the respondent. If the respondent hires an attorney then the guardian ad litem may be discharged. N.C. Gen. Stat. § 35A-1107.

7) There is no summons issued in a guardianship matter, just a notice of hearing.

8) The notice of hearing must be issued by the clerk within five days of the filing of the petition. A hearing must be scheduled no less than ten (10) and no more than thirty (30) days after the petition is filed, unless the clerk extends the time for good cause. N.C. Gen. Stat. § 35A-1108.

9) Chapter 35A does not require any party to file a responsive pleading, although the respondent or the guardian ad litem may file a response or motion to dismiss.

10) Any “interested person” may file a motion in the cause. N.C. Gen. Stat. § 35A-1207.

11) C. Gen. Stat. § 35A-1110 gives the respondent, his counsel, or his guardian ad litem the right to demand a jury trial on the issue of competency. The clerk may order a jury trial on the issue of incapacity on its own motion. N.C. Gen. Stat. § 35A-1110; N.C.R.C.P. 39(b).

12) At the time of or subsequent to the filing of a petition, the petitioner may file a verified motion for an interim guardian. The motion shall set forth facts tending to show:

• there is an imminent or foreseeable risk of harm to the respondent’s physical wellbeing that requires immediate intervention; or
• there is an imminent or foreseeable risk of harm to the respondent’s estate that requires immediate intervention.N.C. Gen. Stat. § 35A-1114.

The clerk may schedule an emergency temporary guardianship hearing and appoint an interim guardian should the clerk find either of these bases are met. Note that it is not required to prove incompetency to have an interim guardian appointed. In order to have a temporary guardian appointed, the petitioner must only show “imminent or foreseeable risk.” Clerk of Superior Court: Procedures Manual, Vol. 2, 85.9 (2012). A temporary guardian can be appointed for a maximum of 45 days. A hearing on permanent guardianship must be conducted prior to the expiration of the 45 day period.

13) Pursuant to N.C. Gen. Stat. § 35A-1111 the clerk on its own motion, or upon the motion of any party, the clerk may order that a multidisciplinary evaluation of the respondent be performed. The clerk can order the respondent to attend the multidisciplinary evaluation. N.C. Gen. Stat. § 35A-1111(d). A request for a multidisciplinary evaluation shall be in writing and filed within ten (10) days of service of the petition on respondent. N.C. Gen. Stat. § 35A-1111(a). The results of the evaluation shall be mailed to the petitioner and counsel or guardian ad litem for the respondent. N.C. Gen. Stat. § 35A-1111(b). The results of the multidisciplinary evaluation are not a public record and its content should not be released except by order of the clerk. N.C. Gen. Stat. § 35A-1111(b).

14) A guardianship hearing is open to the public, unless the respondent or his counsel or his guardian ad litem request otherwise, in which event the clerk shall exclude all persons other than those directly involved in the hearing. N.C. Gen. Stat. § 35A-1112(a).

15) The North Carolina Rules of Evidence apply to proceedings for the appointment guardians. N.C.R. Evid. 1101.

16) Clerks often bifurcate guardianship hearings into two separate issues. First, whether the respondent is incompetent. And second, if so, who the guardian(s) should be.

17) Because the superior court conducts a de novo hearing on the issue of incapacity on appeal, there is no requirement that the hearing on incapacity be recorded. N.C. Gen. Stat. § 35A-1115. The clerk is required upon the request of a party to make a recording of the portion of the hearing regarding the appointment of a guardian for the respondent because it is an Estate Proceeding. N.C. Gen. Stat. § 1-301.3(f).

18) The law presumes that a person has sufficient mental capacity to make their own decisions regarding their personal affairs. State v. Thompson, 328 N.C. 477 (1991). The petitioner has the burden of proving incapacity by clear, cogent and convincing evidence. N.C. Gen. Stat. § 35A-1112(d).

19) “Incompetent Adult” means an adult or emancipated minor who lacks sufficient capacity to manage the adult’s own affairs or to make or communicate important decisions concerning the adult’s person, family, or property whether the lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition. N.C. Gen. Stat. § 35A-1101(7).

20) Although incapacity is usually proven through medical evidence, lay persons are competent to offer opinions of the issue of mental capacity. N.C.R. Evid. 701; State v. Strickland, 321 N.C. 31 (1987).

21) The guardian ad litem generally files a report prior to the hearing and often testifies at the hearing.

22) If the clerk (or jury) finds that the respondent is competent, then the clerk must issue an order dismissing the petition. N.C. Gen. Stat. § 35A-1112(c). If the clerk or jury finds that the respondent is incompetent, then the clerk shall enter an order finding the respondent incompetent. The clerk may include in the order findings on the nature and extent of the ward’s incompetence. N.C. Gen. Stat. § 35A-1112(d).

23) Following an adjudication of incompetence, the clerk shall either appoint a guardian or, for good cause shown, transfer the proceedings to any county authorized by N.C. Gen. Stat. § 35A­1103 for the appointment of a guardian.

24) The clerk is required to make inquiry and receive evidence as the clerk deems necessary on the issue of limited guardianship. If the clerk determines that the nature and extent of a ward’s capacity justifies ordering a limited guardianship, then the clerk may do so. N.C. Gen. Stat. § 35A­1212. Any order of limited guardianship shall include findings as to the nature and extent of the ward’s incompetence. N.C. Gen. Stat. § 35A-1215(b).

25) A proceeding to appoint a guardian is an estate proceeding. In re: Simmons, 266 N.C. 702 (1966).

26) The clerk shall make such inquiry and receive such evidence as the clerk deems necessary to determine:

• the nature and extent of the needed guardianship;
• the assets, liabilities and needs of the ward; or
• who, in the clerk’s discretion, can most suitably serve as the guardian or guardians. N.C. Gen. Stat. § 35A-1212(a).

27) The court shall appoint the guardian designated in the respondent’s most recent durable power of attorney as general guardian, guardian of the estate, or guardian of the person, except for good cause shown or disqualification. N.C. Gen. Stat. § 32A-10(b).

The court shall appoint the guardian of the person designated in the respondent’s most recent health care power of attorney, except for good cause shown or disqualification. N.C. Gen. Stat. § 32A-22(b).  If a parent recommends a guardian in their last will, such a recommendation shall be a strong guide for the clerk in appointing a guardian, but the clerk is not bound by the recommendations if the clerk finds that the appointment of another guardian is in the best interests of the ward. N.C. Gen. Stat. § 35A-1112.1.

28) A guardian of the estate or general guardian must post a bond pursuant to N.C. Gen. Stat. § 35A-1230 seq. prior to taking possession of the ward’s property. A bond is not required for a Guardian of the person.

29)

• Costs, including the reasonable attorney’s fees of the petitioner, may be taxed against either party, unless the court finds that the petitioner did not have reasonable grounds to bring the proceeding, in which case costs shall be taxed to the petitioner. If the respondent is indigent then the cost shall be waived by the clerk unless taxed to the petitioner. N.C. Gen. Stat. § 35A-1116(a).
• The costs of a multidisciplinary evaluation shall be assessed against the respondent if the respondent if the respondent is not indigent. N.C. Gen. Stat. § 35A-1116(b)(1). If the respondent is adjudicated incompetent and is indigent, then the costs shall be borne by the Department of Health and Human Services. N.C. Gen. Stat. § 35A-1116(b)(2). If the respondent is not adjudicated incompetent, then the costs may be taxed to either party, apportioned among the parties, or borne by the Department of Health and Human Services. N.C. Gen. Stat. § 35A-1116(b)(3).
• If the respondent is not indigent, then the fees of the guardian ad litem are paid by the respondent if the court finds that the respondent is incompetent or if the court finds that the respondent is competent and that there were reasonable grounds for bringing the proceeding. N.C. Gen. Stat. § 35A-1116(c2)(1) and (2). The fees of the guardian ad litem shall be taxed to the petitioner if the court finds that the respondent is not incompetent and there was not reasonable grounds to bring the petition. N.C. Gen. Stat. § 35A-1116(c2)(3). In all other cases the guardian ad litem’s fees shall be paid by the Office of Indigent Services. N.C. Gen. Stat. § 35A-1116(c2)(4).
• N.C. Gen. Stat. § 35A-1116(d) states, “The provisions of this section shall also apply to all parties to any proceeding under this Chapter, including a guardian who has been removed from office and the sureties on the guardian’s bond.”

30) Appeal.

• Written notice of appeal from an order of incompetence must be filed within ten (10) days. N.C. Gen. Stat. § 1-301.2. Appeal from a clerk’s order on incompetence is an appeal of a special proceeding and shall be to the superior court for hearing de novo. N.C. Gen. Stat. § 35A-1115. The filing of an appeal does not stay the appointment of a guardian unless so ordered by the superior court or the court of appeals.
• Notice of appeal of the clerk’s order appointing guardians is an appeal from an estate proceeding and must be filed within ten (10) days. N.C. Gen. Stat. § 1-301.3. The notice must be in writing and contain a short and plain statement of the basis of the appeal.
• Any party who was served with notice of the proceedings pursuant to N.C. Gen. Stat. § 35A-1109 may file an appeal to the clerk’s order on the issue of competence. In re: Winstead, 189 N.C. App. 145 (2007).

For a more detailed discussion of this topic see John L. Saxon, North Carolina Guardianship Manual (2008).  Many of the citations in this section were taken from this manual.

4779903_1