Incompetency Proceedings

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Nancy Ray


By Nancy Ray

Sunday, November 12, 2017

Some of the most emotionally difficult hearings happening at your local courthouse are special proceedings that have been filed in order to declare adults incompetent.

These matters, which are heard by the Clerk of Court, are filed by people who believe that the adults who are the subject of the proceedings lack sufficient capacity to manage their own affairs or to make or communicate important decisions concerning their persons, families, or property. The lack of capacity may be due to mental illness, intellectual disability, disease, injury, or any similar cause or condition.

Often, a person who is the subject of one of these cases is someone who was once quite capable of handling his or her own personal affairs. The person may have been injured in an accident or may be suffering from an illness that has robbed him of his former ability to live as an ordinary adult would live. It is difficult for many people to understand and to admit that they do not have the capacity that they once had, and so these hearings have the potential to be stressful and sad for everyone who is involved. What actually happens at one of these trials?

At an incompetency hearing, the clerk examines medical evidence about the incompetent adult, reviews other documents, and hears testimony from interested persons. The clerk reviews reports and recommendations made by an independent attorney who is appointed to personally visit the incompetent adult as soon as possible and to determine the adult’s express wishes regarding the incompetency proceeding and any proposed guardianship.

If the clerk finds the adult to be incompetent, then a guardian is appointed for him. The guardian may be a guardian of the person, a guardian of the estate, or a general guardian. A guardian of the person is responsible for the incompetent person’s physical care and protection, for the person’s training, education, and employment, and for giving any consent or approval that may be necessary to enable the person to receive medical, legal, psychological, or other professional care. A guardian of the estate is responsible for managing the incompetent adult’s property, addressing obligations relating to that property and regulating expenditures of the adult’s income and assets. A general guardian serves as both guardian of the person and guardian of the estate.

What if the person declared incompetent begins to improve? Perhaps this adult was in an accident and suffered a brain injury. If his brain heals, it is possible that he might recover significant abilities once feared permanently lost. North Carolina law allows for motions to restore competency to be filed in these cases, if there are facts tending to show that the adult is now competent. The motion should be accompanied by evidence, such as medical reports or evaluations, showing that the adult has recovered the critical abilities that were absent when he or she was declared incompetent.

If the clerk hearing the case would like further information about the current mental status of the adult, then the clerk may order a multidisciplinary evaluation, which would contain current medical, psychological, and social work evaluations of the adult and may include evaluations by professionals from other disciplines. If the clerk finds by the greater weight of the evidence that the adult is now competent, then the clerk enters an order adjudicating that the adult is restored to competency. Upon such adjudication, the adult is free to exercise all rights as if he or she had never been adjudicated incompetent.

If you have a relative or friend whom you believe to be unable to handle his own affairs, contact an attorney to discuss a special proceeding to declare incompetency. Often, time is of the essence in these cases. Opportunities for critical medical care may be missed, valuable property can be mismanaged or lost, and great harm can be suffered by an incompetent adult who has no guardian to protect his interests.

Nancy Ray is a teaching Instructor at ECU in the Finance Department.


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