North Carolina Statutes

Chapter 35A Incompetency and Guardianship

Article 1 - Determination of Incompetence.

  • § 35A-1101   Definitions
    When used in this Subchapter: (1) "Autism" means a physical disorder of the brain which causes disturbances in the developmental rate of physical, social, and...
  • § 35A-1102   Scope of law; exclusive procedure
    This Article establishes the exclusive procedure for adjudicating a person to be an incompetent adult or an incompetent child. However, nothing in this Article shall...
  • § 35A-1103   Jurisdiction; venue
    (a) The clerk in each county shall have original jurisdiction over proceedings under this Subchapter. (b) Venue for proceedings under this Subchapter shall be in...
  • § 35A-1104   Change of venue
    The clerk, on motion of a party or the clerk's own motion, may order a change of venue upon finding that no hardship or prejudice...
  • § 35A-1105   Petition before clerk
    A verified petition for the adjudication of incompetence of an adult, or of a minor who is within six months of reaching majority, may be...
  • § 35A-1106   Contents of petition
    The petition shall set forth, to the extent known: (1) The name, age, address, and county of residence of the respondent; (2) The name, address,...
  • § 35A-1107   Right to counsel or guardian ad litem
    (a) The respondent is entitled to be represented by counsel of his own choice or by an appointed guardian ad litem. Upon filing of the...
  • § 35A-1108   Issuance of notice
    (a) Within five days after filing of the petition, the clerk shall issue a written notice of the date, time, and place for a hearing...
  • § 35A-1109   Service of notice and petition
    Copies of the petition and initial notice of hearing shall be personally served on the respondent. Respondent's counsel or guardian ad litem shall be served...
  • § 35A-1110   Right to jury
    The respondent has a right, upon request by him, his counsel, or his guardian ad litem, to trial by jury. Failure to request a trial...
  • § 35A-1111   Multidisciplinary evaluation
    (a) To assist in determining the nature and extent of a respondent's disability, or to assist in developing an appropriate guardianship plan and program, the...
  • § 35A-1112   Hearing on petition; adjudication order
    (a) The hearing on the petition shall be at the date, time, and place set forth in the final notice of hearing and shall be...
  • § 35A-1113   Hearing when incompetence determined in another state
    When the petition alleges that the respondent is incompetent on the basis of an adjudication that occurred in another state, the clerk in his discretion...
  • § 35A-1114   Appointment of interim guardian
    (a) At the time of or subsequent to the filing of a petition under this Article, the petitioner may also file a verified motion with...
  • § 35A-1115   Appeal from clerk's order
    Appeal from an order adjudicating incompetence shall be to the superior court for hearing de novo and thence to the Court of Appeals. An appeal...
  • § 35A-1116   Costs and fees
    (a) Except as otherwise provided herein, costs shall be assessed as in special proceedings. Costs, including any reasonable fees and expenses of counsel for the...
  • § 35A-1117 through 35A-1119   Reserved for future codification purposes

Article 2 - Appointment of Guardian.

Article 3 - Restoration to Competency.

Article 4 - Purpose and Scope; Jurisdiction; Venue.

  • § 35A-1201   Purpose
    (a) The General Assembly of North Carolina recognizes that: (1) Some minors and incompetent persons, regardless of where they are living, require the assistance of...
  • § 35A-1202   Definitions
    When used in this Subchapter, unless a contrary intent is indicated or the context requires otherwise: (1) "Accounting" means the financial or status reports filed...
  • § 35A-1203   Jurisdiction; authority of clerk
    (a) Clerks of superior court in their respective counties have original jurisdiction for the appointment of guardians of the person, guardians of the estate, or...
  • § 35A-1204   Venue
    (a) Venue for the appointment of a guardian for an incompetent person is in the county in which the person was adjudicated to be incompetent...
  • § 35A-1205   Transfer to different county
    At any time before or after appointing a guardian for a minor or incompetent person the clerk may, on a motion filed in the cause...
  • § 35A-1206   Letters of appointment
    Whenever a guardian has been duly appointed and qualified under this Subchapter, the clerk shall issue to the guardian letters of appointment signed by the...
  • § 35A-1207   Motions in the cause
    (a) Any interested person may file a motion in the cause with the clerk in the county where a guardianship is docketed to request modification...
  • § 35A-1208   Authority for health care decisions
    (a) A guardian of the person or general guardian of an incompetent adult may petition the Clerk, in accordance with G.S. 32A‑22(a), for an order...
  • § 35A-1209   Reserved for future codification purposes

Article 5 - Appointment of Guardian for Incompetent Person.

Article 6 - Appointment of Guardian for a Minor.

Article 7 - Guardian's Bond.

  • § 35A-1230   Bond required before receiving property
    Except as otherwise provided by G.S. 35A‑1212.1 and G.S. 35A‑1225(a), no general guardian or guardian of the estate shall be permitted to receive the ward's...
  • § 35A-1231   Terms and conditions of bond; increase on sale of realty or personal property
    (a) Before issuing letters of appointment to a general guardian or guardian of the estate the clerk shall require the guardian to give a bond...
  • § 35A-1232   Exclusion of deposited money in computing amount of bond
    (a) When it appears that the ward's estate includes money that has been or will be deposited in a bank in this State or invested...
  • § 35A-1233   Clerk's authority to reduce penalty of bond
    When a guardian has disbursed either income or income and principal of the estate according to law, for the purchase of real estate or the...
  • § 35A-1234   Action on bond
    Any person injured by a breach of the condition of the guardian's bond may prosecute a suit thereon, as in other actions. (1987, c. 550,...
  • § 35A-1235   One bond sufficient when several wards have estate in common
    When the same person is appointed guardian for two or more minors or incompetent persons possessed of one estate in common, the clerk may take...
  • § 35A-1236   Renewal of bond
    Every guardian who is required to post a bond and who does so other than through a duly authorized surety company shall renew his bond...
  • § 35A-1237   Relief of endangered sureties
    Any surety of a guardian, who is in danger of sustaining loss by his suretyship, may file a motion in the cause before the clerk...
  • § 35A-1238   Clerk's liability
    (a) If any clerk commits the estate of a ward to the guardianship of any person without taking good and sufficient bond for the same...
  • § 35A-1239   Health and Human Services bond
    The Secretary of the Department of Health and Human Services shall require or purchase individual or blanket bonds for all disinterested public agents appointed to...

Article 8 - Powers and Duties of Guardian of the Person.

Article 9 - Powers and Duties of Guardian of the Estate.

Article 10 - Returns and Accounting.

  • § 35A-1260   Applicability
    This Article applies only to general guardians and guardians of the estate. (1987, c. 550, s. 1.)
  • § 35A-1261   Inventory or account within three months
    Every guardian, within three months after his appointment, shall file with the clerk an inventory or account, upon oath, of the estate of his ward;...
  • § 35A-1262   Procedure to compel inventory or account
    (a) In cases of default to file the inventory or account required by G.S. 35A‑1261, the clerk must issue an order requiring the guardian to...
  • § 35A-1263   Repealed by Session Laws 1989, c. 473, s. 28
  • § 35A-1263.1   Supplemental inventory
    Whenever any property not included in the original inventory report becomes known to the guardian or whenever the guardian learns that the valuation or description...
  • § 35A-1264   Annual accounts
    Every guardian shall, within 30 days after the expiration of one year from the date of his qualification or appointment, and annually, so long as...
  • § 35A-1265   Procedure to compel accounting
    (a) If any guardian omits to account, as directed in G.S. 35A‑1264, or renders an insufficient and unsatisfactory account, the clerk shall forthwith order such...
  • § 35A-1266   Final account and discharge of guardian
    Within 60 days after a guardianship is terminated under G.S. 35A‑1295, the guardian shall file a final account for the period from the end of...
  • § 35A-1267   Expenses and disbursements credited to guardian
    Every guardian may charge in his annual account all reasonable disbursements and expenses; and if it appear that he has really and bona fide disbursed...
  • § 35A-1268   Guardian to exhibit investments and bank statements
    At the time the accounts required by this Article and other provisions of law are filed, the clerk shall require the guardian to exhibit to...
  • § 35A-1269   Commissions
    The clerk shall allow commissions to the guardian for his time and trouble in the management of the ward's estate, in the same manner and...

Article 11 - Public Guardians.

Article 12 - Nonresident Ward Having Property in State.

Article 13 - Removal or Resignation of Guardian; Successor Guardian; Estates Without Guardians; Termination of Guardianship.

  • § 35A-1290   Removal by Clerk
    (a) The clerk has the power and authority on information or complaint made to remove any guardian appointed under the provisions of this Subchapter, to...
  • § 35A-1291   Emergency removal; interlocutory orders on revocation
    The clerk may remove a guardian without hearing if the clerk finds reasonable cause to believe that an emergency exists that threatens the physical well‑being...
  • § 35A-1292   Resignation
    (a) Any guardian who wishes to resign may apply in writing to the clerk, setting forth the circumstances of the case. If a general guardian...
  • § 35A-1293   Appointment of successor guardian
    Upon the removal, death, or resignation of a guardian, the clerk shall appoint a successor guardian following the same criteria that would apply to the...
  • § 35A-1294   Estates without guardians
    (a) Whenever a general guardian or guardian of the estate is removed, resigns, or stops serving without making a full and proper accounting, the successor...
  • § 35A-1295   Termination of guardianship
    (a) Every guardianship shall be terminated and all powers and duties of the guardian provided in Article 9 of this Chapter shall cease when the...
  • § 35A-1296 through 35A-1300   Reserved for future codification purposes

Article 14 - Sale, Mortgage, Exchange or Lease of Ward's Estate.

Article 15 - Mortgage or Sale of Estates Held by the Entireties.

Article 16 - Surplus Income and Advancements.

Article 17 - Gifts from Income for Certain Purposes.

Article 18 - Gifts from Principal for Certain Purposes.

Article 19 - Declaring Revocable Trust Irrevocable and Making Gift of Incompetent's Life Interest Therein.

Article 20 - Guardians' Deeds Validated When Seal Omitted.

Article 21 - Standby Guardianship.

  • § 35A-1370   Definitions
    For purposes of this Article: (1) "Alternate standby guardian" means a person identified in either a petition or designation to become the guardian of the...
  • § 35A-1371   Jurisdiction; limits
    Notwithstanding the provisions of Subchapter II of this Chapter, the clerk of superior court shall have original jurisdiction for the appointment of a standby guardian...
  • § 35A-1372   Standby guardianship; applicability
    This Article provides two methods for appointing a standby guardian: by petition pursuant to G.S. 35A‑1373 or by designation pursuant to G.S. 35A‑1374. If a...
  • § 35A-1373   Appointment by petition of standby guardian; petition, notice, hearing, order
    (a) A petitioner shall commence a proceeding under this Article for the appointment of a standby guardian of a minor child by filing a petition...
  • § 35A-1374   Appointment by written designation; form
    (a) A designator may designate a standby guardian by means of a written designation, signed by the designator in the presence of two witnesses at...
  • § 35A-1375   Determination of incapacity or debilitation
    (a) If requested by the petitioner, designator, or standby guardian, an attending physician shall make a determination regarding the incapacity or debilitation of the petitioner...
  • § 35A-1376   Restoration of capacity or ability; suspension of guardianship
    In the event that the authority of the standby guardian becomes effective upon the receipt of a determination of incapacity or debilitation and the petitioner...
  • § 35A-1377   Authority concurrent to parental rights
    The commencement of the standby guardian's authority pursuant to a determination of incapacity, determination of debilitation, or written consent shall not itself divest the petitioner...
  • § 35A-1378   Powers and duties
    A standby guardian designated pursuant to G.S. 35A‑1374 and a guardian of the person or general guardian appointed pursuant to this Article have all of...
  • § 35A-1379   Appointment of guardian ad litem
    (a) The clerk may appoint a volunteer guardian ad litem, if available, to represent the best interests of the minor child and, where appropriate, express...
  • § 35A-1380   Bond
    The bond requirements of Article 7 of this Chapter shall apply to a guardian of the person or general guardian appointed pursuant to G.S. 35A‑1373...
  • § 35A-1381   Accounting
    The accounting requirements of Article 10 of this Chapter apply to a general guardian appointed pursuant to this Article. (1995, c. 313, s. 1.)
  • § 35A-1382   Termination
    Any standby guardianship created under this Article shall continue until the child reaches 18 years of age unless sooner terminated by order of the clerk...