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C. Douglas Maxwell, Jr.

Attorney at Law


GUARDIANSHIP

A “guardian” is someone who is appointed by the Clerk of Superior Court to act on behalf of an incompetent adult. In North Carolina there are three types of guardians for an incompetent adult (ward), they are:

Guardian of the Person: This person makes decisions about the ward’s personal care and well-being, such as housing and medical decisions. The Guardian of the Person cannot handle the ward’s money.

Guardian of the Estate: This person handles the ward’s finances (estate), but cannot make decisions about the ward’s personal care and well-being.

General Guardian: The general guardian is someone who has the power to make personal decisions for and handle the finances of the ward.

Note: What if a minor child inherits or receives money from someone’s estate or life insurance -- can a guardian of the estate be appointed?


  • Yes, a guardian of the estate can be appointed for a minor even if the minor’s parents are still living and caring for the minor. 

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What is Incompetency and how is it determined?

"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.


How is Incompetency determined?

A petition seeking to have someone declared incompetent must be filed. The person is entitled to a jury trial, or the matter may be heard before the Clerk of Superior Court.

Generally, there has to be medical or psychological evidence to assist the jury or Clerk in determining whether the person no longer has the ability to make decisions or care for himself or herself.

LAW OFFICE OF C. DOUGLAS MAXWELL, JR.
P.O. Box 2465, Fayetteville, North Carolina 28302   
Telephone: (910) 483-1414   
FAX: (910) 483-7443