Special Proceedings Division (Historic Courthouse)
1 Court Square, Graham, NC 27253
phone: (336) 570-5206, fax: (336) 570-5201
Guardian/Incompetency generally begins as a Special Proceeding. However, Guardian of the Estate for a Minor begins in the Estates Division.
If you believe someone is unable to manage their own affairs or make their own decisions, perhaps due to injury or mental health issues, a petition may be filed before the Clerk of Superior Court to have the person adjudicated incompetent and to have a legal guardian appointed. Additional information to help understand guardianship can be found in a video here.
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Upon the filing of the petition, a Guardian ad Litem (lawyer for the case) will be appointed by the court to represent the Respondent (person alleged to be incompetent) at an incompetency hearing. An adjudication of incompetence results in the loss of many of the basic rights that we take for granted, such as the right to make decisions regarding one’s health care and medical treatment or where one lives. No matter how obvious a person’s incompetence may be to family members, every alleged incompetent person has a right to be heard by the court and insist that the petition demonstrates clear, cogent, and convincing evidence that a guardian is necessary. The court-appointed Guardian ad Litem will ensure that the Respondent’s interests are known to the Court.
In addition, upon the filing of the petition, you will need to mail a copy of the Notice of Hearing and the petition to all next of kin. Typically, a person’s next of kin will include the spouse, parents, children, and siblings. The next of kin must be listed in the petition and you must file a notarized Affidavit of Service that a copy of the Notice of Hearing and petition were mailed to each by first-class mail to the address(es) listed. (Please note the Law requires that the Sheriff personally serve the petition to the Respondent.)
An incompetency hearing is generally scheduled three (3) to four (4) weeks from the filing of the petition. This allows the Sheriff’s Department sufficient time to serve the Respondent with the petition, allows family members and other next of kin time to plan to attend the hearing if they wish, and provides an opportunity for the court-appointed attorney to make a personal visit with the Respondent and decide how best to represent him/her.
Please be advised of the following: If you believe there is an emergency situation that threatens the physical or financial well-being of the Respondent and feel a guardian is needed immediately to address the issue, please notify the Clerk’s Office. Our office will schedule an emergency hearing to determine whether an Interim Guardian may be appropriate.
Examples of evidence in incompetency hearings include an affidavit(s) from a doctor, psychologist, or psychiatrist stating that, in the doctor’s opinion, the Respondent is incompetent and in need of a guardian, as well as witness(es) present in court and prepared to testify.
If a guardianship has already been established and you would like to see it modified, you may bring your request to the attention of the Clerk by filing a Motion in the Cause to Modify Guardianship, which is available via the State’s website at www.nccourts.org or by clicking on the following link: Motion to Modify. This Motion is to be filed in the Estates Division.
As with all judicial proceedings, the Clerk’s Office is expressly forbidden by law from offering any legal advice and it is strongly recommended you seek competent legal counsel to help you.
For more information about guardianship proceedings or to obtain guardianship forms, you may visit the Special Proceedings Division.
To view a pamphlet on Responsibilities of Guardians in North Carolina please click on the following links: