A “Guardianship” is a legal relationship in which someone (the guardian) is authorized by the Clerk of Superior Court to be substitute decision maker for an adult (the ward), who is determined to be “incompetent” or unable to manage his or her own affairs or make important decisions on his or her own behalf. Incompetence is determined in a court proceeding and means an adult is unable to manage his own affairs, or is unable to make important decisions or manage their own finances. In such cases, a concerned family member, friend, or caregiver may seek to petition the Clerk of Court for a guardian to be appointed over that individual.

A fee for filing the petition may be required and may be reimbursed later by the court unless the court determines the petitioner did not have good reason to start the guardianship proceeding. When a petition is filed, the clerk of court sets a date and time for the guardianship hearing. The sheriff serves copies of the petition and notice of the hearing on the respondent and on his attorney or other representative. The “petitioner,” or person who filed the petition for guardianship, must mail copies of the petition and notice of the hearing to the respondent’s spouse and relatives.

The Clerk of Court may appoint a “Guardian ad Litem” for the individual for whom a guardian is sought, who will conduct an independent investigation and act as the “eyes and ears” of the Court and will prepare a report for the Court and then the Clerk of Court will decide whether a guardianship is appropriate for an individual after considering evidence and testimony presented during an Incompetency Hearing, and will then decide who is the best choice to serve as guardian. Sometimes this is a family member or sometimes the Clerk will appoint an independent guardian such as an attorney or public administrator.

If you have questions about guardianship and incompetency, call us today. We can guide you through the process, whether it is you or a loved one that needs assistance, and also advise you about the various alternatives options which may be available if pursuing a guardianship is not right for your situation.

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