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Incompetency and Guardianships

If a person becomes seriously ill and is no longer able to handle his/her personal affairs, a guardianship may be necessary.  The first step to having a guardian appointed to care for your loved one is to file a petition before the Clerk of Court in the county where your loved one resides to determine if he/she is “incompetent”.  The statute governing this process is Chapter 35A: Incompetency and Guardianship.

Once you file a petition with the Clerk in the correct county, the Clerk will appoint a Guardian ad litem for your family member and will schedule a hearing. The Guardian ad litem will most likely be a local attorney who will visit with your family and report back to the Clerk for the hearing. The Clerk may also require a report from a physician who has examined your family member.

If the Clerk determines that your family member is incompetent, the Clerk will then decide who is the best person to serve as guardian. There are basically three types of guardianships: Guardian of the Person, which only handles personal affairs and does not handle financial affairs; Guardian of the Estate, which only handles financial affairs and not personal affairs; and General Guardian, which handles both personal and financial affairs.

An attorney can be helpful for all steps of this process, especially if the family is in disagreement about what should happen with the person who has failing health. An attorney can also be essential in assisting the appointed guardian who is handling the financial affairs to make proper legal decisions regarding the money and to prepare reports for the Clerk each year. You need an attorney who is well versed in the law and has experience in handling the guardianship in your family member’s county.

Ms. McCray serves as one of Franklin County’s public guardians for residents who do not have family members who can assist them when they are ill. Her work as public guardian and her experience with the Wake County Clerk’s office make her well equipped to assist families in this most difficult time.

Click here to contact attorney Gena McCray or call us at (919) 497-0091 for more information.