When does someone need a guardianship?


In North Carolina, guardianship is a legal relationship in which someone (the guardian) is authorized by the clerk of superior court to be decision maker for an incompetent adult. In order for a guardian to be appointed to make decisions for someone, that person must first be found by a clerk to be legally incompetent. This is known as adjudication, which just means it was determined in a court proceeding. The legal definition of incompetence means an adult is unable to manage his/her own affairs, or is unable to make important decisions concerning himself/herself, family, or property.

Guardianships are necessary for incompetent adults age 18 and up. For persons under age 18 who are incompetent, their parent(s) serve as guardian(s). Once a person turns 18 however, they have authority to manage their own affairs and make important decisions about where they live, what medical treatment they receive, and how to manage their finances. When a person's condition renders them incompetent however, a guardian needs to be appointed to handle the incompetent person's affairs for them.

Common situations and conditions that may lead to incompetency are mental illness, mental disabilities, dementia, Alzheimer's disease, psychological and psychiatric disorders, bipolar/manic-depressive disorder, schizophrenia-paranoia, intellectual or developmental disabilities, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, comatose, cognitive impairment, or similar cause. There is no conclusive list of diseases or conditions that would render a person incompetent - every person is affected by these diseases and conditions differently. Just because a person has one of these conditions does not necessarily mean that they are legally incompetent or require a guardianship.


When a person who has not yet turned 18 is in a condition such as those set forth above, a petition for guardianship can actually be brought once that person is 17 ½ years old. This is to ensure that there is a guardian appointed by their 18th birthday, so there is no issue with lag time between turning 18 and having a guardian appointed.

In older adults, deciding when is the right time to file for guardianship may be far more challenging. When seniors show signs of dementia, Alzheimer's, senility, memory loss, or other cognitive impairment, it often tough to parse out what might just be old age or forgetfulness and what might be signals of something more serious. It is very common for families to wait longer than they should to begin the guardianship process with a parent or family member exhibiting these symptoms.


In considering seeking guardianship, it is helpful for someone who knows the potentially incompetent person well to consider and answer capacity questions regarding various areas of the person's life. These same capacity considerations and questions are more or less covered in the Petition for Appointment of Guardian (which is required to be filed to begin a guardianship proceeding), addressed by the Guardian Ad Litem (court-appointed attorney who speaks with the ward and those close to them), and presented to the Court at the hearing. The responses to these questions are helpful in gathering information that will assist 1) loved ones in deciding whether a guardianship is needed, and 2) the Court in determining what, if any, rights, powers, and privileges the ward can retain under guardianship or limited guardianship.

All areas of these capacity questions may not pertain to each potentially incompetent person. It is very common for a person to have the ability and capacity to read, write, and speak clearly, however the contents of their communications are the concern. Maybe they start talking about something that occurred decades ago, or they ask about a loved one that passed away long ago as if that person were still alive. Maybe they ask the same questions or tell the same stories repeatedly without realizing it. Perhaps they simply do not have enough understanding or insight into their own condition to keep themselves safe. These capacity questions are listed below.

A. Language and Communication

a. Does the person understand and participate in social conversation in his/her primary language (including such topics as sports, family, activities)?

b. Does the person communicate independently with acquaintances in the community?

c. Can the person understand and respond to verbal communications?

d. Can the person read and write?

e. Can the person understand various signs (e.g. keep out, stop, men, women, poison)?

f. Are the person's communications coherent (e.g. oriented to person, place, time)?

B. Nutrition

a. Does the person make reasonable decisions regarding eating (e.g. when, where, and what to eat)?

b. Does the person know when they should eat without being prompted by others?

c. Is the person reliant on others to prompt them to eat or to prepare their food?

d. Is the person able to eat and drink independently?

e. Is the person able to prepare food that requires cooking and mixing?

f. Is the person able to prepare food that does not require cooking and mixing?

g. Is the person able to prepare meals that require the use of the stove, oven, or microwave?

h. Does the person know which foods, if any, he or she is unable to tolerate?

i. If the person has a health condition such as diabetes, is he or she able to follow a prescribed diet?

C. Personal Hygiene

a. Does the person bathe and maintain proper personal hygiene?

b. Is assistance required?

c. Does the person brush teeth daily and maintain adequate dental care?

d. Does the person control toilet functions during the day?

e. When toileting, does the person use proper hygiene (e.g. wiping, getting to/on/off toilet)?

f. Is the person able to fully and properly dress and undress himself or herself?

g. Does the person wear clothing appropriate to the weather and/or occasion?

D. Health Care

a. Can the person make and communicate choices in regard to medical treatment?

b. Can the person make and communicate choices in regard to caregivers and assistants?

c. Does the person know whom to notify of symptoms of illness?

d. Is the person able to take care of minor health problems such as colds, cuts, etc.?

e. Is the person able to follow proper instructions in taking prescribed medicine?

f. Can the person communicate medication problems or needs?

g. Does the person understand the consequences of not accepting medical treatment?

h. Can the person reach emergency health care (e.g. calling an ambulance)?

E. Personal Safety

a. Can the person identify physical or sexual abuse and protect him or herself from personal harm by others?

b. Can the person identify neglect and know what to do if neglected?

c. Does the person avoid common environmental dangers, such as oncoming traffic, sharp objects, a hot stove, and poisonous products?

d. Can the person be left alone for periods up to 24 hours without being at risk?

e. Can the person use a telephone to contact help in an emergency?

f. In what areas, if any, might the person be especially vulnerable and need protection?

F. Residential

a. Can the person make and communicate choices in regard to residence and roommates?

b. Is the person able to maintain shelter that is safe/adequately heated and ventilated?

c. Can the person evacuate the premises in the case of fire or other danger?

G. Employment (if applicable)

a. Can the person make and communicate choices in regard to employment?

b. Does the person express knowledge of or demonstrate skills required at job sites (neatness, punctuality, getting along with others)?

c. Is the person able to use several approaches to finding a job (e.g. going to an employment agency, responding to ads, and using contacts)?

d. Does the person have a job?

e. Does the person interact appropriately with co-workers and authority figures?

H. Independent Living

a. Can the person initiate and follow a daily schedule of activities (e.g. when to get up, what to do, and when to go to bed)?

b. Does the person acquire and retain new skills and readily apply them?

c. Can the person utilize familiar community resources (e.g. post office, stores, bus, bank)?

d. Can the person avoid common dangers when traveling in the community?

e. Can the person identify his or her address and return home or seek assistance if lost or stranded?

f. Does the person establish and maintain personal relationships with friends, relatives, co-workers?

g. Can the person determine his or her degree of participation in religious activities?

h. Does the person make and communicate choices in regard to leisure activities?

i. Can the person drive a car?

j. Does the person exercise reasonably good judgment most of the time?

I. Civil

a. Does the person know whom to contact if he or she is being exploited or treated unfairly (e.g. police, DSS, Arc, lawyer, etc.

b. Does the person understand how to obtain legal counsel or advocacy services?

c. Is the person able to communicate wishes regarding legal documents or services?

d. Does the person understand the consequences of being charged and convicted of a crime?

e. Does the person demonstrate a willingness to vote?

J. Financial

a. Can the person make and communicate decisions to manage a budget?

b. Does the person know the source and amounts of monetary benefits he or she receives on a weekly, monthly or annual basis?

c. Does the person identify and make change for $1, $5, and $20?

d. Can the person adequately maintain a bank account?

e. Can the person protect and spend small amounts of money?

f. Does the person understand the concept of a debt?

g. Can the person identify and resist financial exploitation?

The capacity questions are often a piece of the puzzle. There could be, and typically is, other pertinent information relevant to the incompetency and guardianship process that is outside of these questions. Our Charlotte guardianship attorneys can guide you through this sensitive and difficult process.