Process for Filing for Guardianship

WHAT IS THE PROCESS FOR GUARDIANSHIP?

A guardianship case starts with the filing of a Petition. The Petition itself has certain requirements in accordance with North Carolina statutes. Although the guardianship statute allows "any interested person" to file for guardianship, typically family members, care providers, or social workers will be filing.

The person who files the petition is called the petitioner. The person who is alleged to be incompetent in the petition is the respondent. A common question is "If I file the Petition, do I have to serve as guardian?" - the answer is NO! You do not have to serve as guardian just because you filed the Petition. Likewise, you do not have to serve as guardian if you do not want to or are unable to. While it is preferable to have someone who knows the respondent well, if there is no one who can act as guardian, you can request a public guardian be appointed.

Often people choose to hire an attorney to prepare the Petition properly. If you have questions about a guardianship petition or initiating a guardianship proceeding in general, contact attorney Elspeth Crawford Long.

The Petition must be served on the Respondent, and all next of kin of the Respondent. Next of kin would include children, siblings, and parents. If there are none, then next of kin includes the next degree, such as grandchildren, aunts, uncles, cousins, nieces, nephews, and grandparents.

When you file the petition, you will be given a court date and the name of the Guardian ad Litem. The Guardian ad Litem is an attorney appointed to represent the interests of the respondent. Other family members or interested persons may also attend the guardianship hearing or provide information. The Clerk of Court (or an Assistant Clerk of Court) is the finder of fact who determines whether the respondent is incompetent and appoints a guardian. He or she can also issue other orders such as order to release medical records or for a special evaluation of the respondent called a multi-disciplinary evaluation. Sometimes other family members or the respondent hires an attorney to advocate for their position.

You should call the Guardian ad Litem to provide him or her with information about the respondent. He or she will visit with the respondent to determine their needs and wishes. If the respondent is living with you, you may need to arrange for the Guardian ad Litem to meet with the respondent. You should ask the Guardian ad Litem to let you know what his or her recommendation will be. If he or she says the respondent does not seem to need a guardian, you will need to prepare your evidence for the hearing.