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.
- § 35A-1210 Application before clerk
Any individual, corporation, or disinterested public agent may file an application for the appointment of a guardian for an incompetent person by filing the same...
- § 35A-1211 Service of application, motions, and notices
(a) Application for appointment of a guardian and related motions and notices shall be served on the respondent, respondent's counsel or guardian ad litem, other...
- § 35A-1212 Hearing before clerk on appointment of guardian
(a) The clerk shall make such inquiry and receive such evidence as the clerk deems necessary to determine: (1) The nature and extent of the...
- § 35A-1212.1 Recommendation of appointment of guardian by will or other writing
Any parent may by will recommend appointment of a guardian for an unmarried child who has been adjudicated an incompetent person and specify desired limitations...
- § 35A-1213 Qualifications of guardians
(a) The clerk may appoint as guardian an adult individual, a corporation, or a disinterested public agent. The applicant may submit to the clerk the...
- § 35A-1214 Priorities for appointment
The clerk shall consider appointing a guardian according to the following order of priority: an individual recommended under G.S. 35A‑1212.1; an individual; a corporation; or...
- § 35A-1215 Clerk's order; issuance of letters of appointment
(a) When appointing a guardian, the clerk shall enter an order setting forth: (1) The nature of the guardianship or guardianships to be created and...
- § 35A-1216 Rule-making power of Secretary of Health and Human Services
The Secretary of the Department of Health and Human Services shall adopt rules concerning the guardianship responsibilities of disinterested public agents. The rules shall provide,...
- § 35A-1217 through 35A-1219 Reserved for future codification purposes
Article 6 - Appointment of Guardian for a Minor.
- § 35A-1220 Absence of natural guardian
When a minor either has no natural guardian or has been abandoned, and the minor requires services from the county department of social services, the...
- § 35A-1221 Application before clerk
Any person or corporation, including any State or local human services agency through its authorized representative, may make application for the appointment of a guardian...
- § 35A-1222 Service of application and notices
A copy of the application and written notice of the time, date, and place set for a hearing shall be served on each parent, guardian,...
- § 35A-1223 Hearing before clerk on appointment of guardian
The clerk shall receive evidence necessary to determine whether a guardian of the person, a guardian of the estate, or a general guardian is required....
- § 35A-1224 Criteria for appointment of guardians
(a) The clerk may appoint a guardian of the estate for any minor. The clerk may appoint a guardian of the person or a general...
- § 35A-1225 Testamentary recommendation; guardian for incompetent minor
(a) Parents are presumed to know the best interest of their children. Any parent may by last will and testament recommend a guardian for any...
- § 35A-1226 Clerk's order; issuance of letters of appointment
After considering the evidence, the clerk shall enter an appropriate order. If the clerk determines that a guardian or guardians should be appointed, the order...
- § 35A-1227 Funds owed to minors
(a) Certain insurance proceeds or other funds to which a minor is entitled may be paid to and administered by the public guardian or the...
- § 35A-1228 Guardians of children of servicemen; allotments and allowances
In all cases where a person serving in the armed forces of the United States has made an allotment or allowance to a resident of...
- § 35A-1229 Reserved for future codification purposes
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.
- § 35A-1240 Applicability of Article
This Article applies only to guardians of the person, including general guardians exercising authority as guardian of the person. (1987, c. 550, s. 1.)
- § 35A-1241 Powers and duties of guardian of the person
(a) To the extent that it is not inconsistent with the terms of any order of the clerk or any other court of competent jurisdiction,...
- § 35A-1242 Status reports for incompetent wards
(a) Any corporation or disinterested public agent that is guardian of the person for an incompetent person, within six months after being appointed, shall file...
- § 35A-1243 Duties of designated agency
(a) Within 30 days after it receives a status report, the designated agency shall certify to the clerk that it has reviewed the report and...
- § 35A-1244 Procedure to compel status reports
If a guardian of the person fails to file a status report as required, or renders an unsatisfactory report, the clerk shall, on his own...
- § 35A-1245 Procedure to permit the sterilization of a mentally ill or a mentally retarded ward in the case of medical necessity
(a) A guardian of the person shall not consent to the sterilization of a mentally ill or mentally retarded ward unless an order from the...
- § 35A-1246 through 35A-1249 Reserved for future codification purposes
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.
- § 35A-1301 Special proceedings to sell, exchange, mortgage, or lease
(a) Whenever used herein, the word "guardian" shall be construed to include general guardian, guardian of the estate, ancillary guardian, next friend, guardian ad litem,...
- § 35A-1302 Procedure when real estate lies in county in which guardian does not reside
In all cases where a guardian is appointed under the authority of Chapter 35A and such guardian applies to the court for an order to...
- § 35A-1303 Fund from sale has character of estate sold and subject to same trusts
Whenever, in consequence of any sale under G.S. 35A‑1301, the real or personal property of the ward is saved from demands to which in the...
- § 35A-1304 Repealed by Session Laws 1989, c. 473, s. 7
- § 35A-1305 When timber may be sold
In case the land cannot be rented for enough to pay the taxes and other dues thereof, and there is not money sufficient for that...
- § 35A-1306 Abandoned incompetent spouse
(a) A guardian of a married person found incompetent who has been abandoned, whether the guardian was appointed before or after the abandonment, may initiate...
- § 35A-1307 Spouse of incompetent husband or wife entitled to special proceeding for sale of real property
Every married person whose husband or wife is adjudged incompetent and is confined in a mental hospital or other institution in this State, and who...
- § 35A-1308 through 35A-1309 Reserved for future codification purposes
Article 15 - Mortgage or Sale of Estates Held by the Entireties.
Article 16 - Surplus Income and Advancements.
- § 35A-1320 Repealed by Session Laws 1989, c. 473, s. 14
- § 35A-1321 Advancement of surplus income to certain relatives
When any incompetent person, of full age, and not having made a valid will, has children or grandchildren (such grandchildren being the issue of a...
- § 35A-1322 Advancement to adult child or grandchild
When such incompetent person is possessed of a real or personal estate in excess of an amount more than sufficient to abundantly and amply support...
- § 35A-1323 For what purpose and to whom advanced
Such advancements shall be ordered only for the better promotion in life of such as are of age, or married, and for the maintenance, support...
- § 35A-1324 Distributees to be parties to proceeding for advancements
In every application for such advancements, the guardian of the incompetent person and all such other persons shall be parties as would at that time...
- § 35A-1325 Advancements to be equal; accounted for on death
The clerk, in ordering such advancements, shall, as far as practicable, so order the same as that, on the death of the incompetent person, his...
- § 35A-1326 Advancements to those most in need
When the surplus aforesaid or advancement from the principal estate is not sufficient to make distribution among all the parties, the clerk may select and...
- § 35A-1327 Advancements to be secured against waste
It is the duty of the clerk to withhold advancements from such persons as will probably waste them, or so to secure the same, when...
- § 35A-1328 Appeal; removal to superior court
Any person made a party may appeal from any order of the clerk; or may, when the pleadings are finished, require that all further proceedings...
- § 35A-1329 Advancements only when incompetence permanent
No such application shall be allowed under this Article but in cases of such permanent and continued incompetence as that the incompetent person shall be...
- § 35A-1330 Orders suspended upon restoration of competence
Upon such incompetent person's being restored to competence, every order made for advancements shall cease to be further executed, and his estate shall be discharged...
- § 35A-1331 through 35A-1334 Reserved for future codification purposes
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.
- § 35A-1350 Declaration and gift for certain purposes authorized with approval of judge of superior court
When a person has created a revocable trust, reserving the income for life, and thereafter has been judicially declared to be incompetent, the guardian or...
- § 35A-1351 Prerequisites to approval of gift
The judge shall not approve the gift unless it appears to his satisfaction that: (1) It is improbable that the incompetent will recover competency during...
- § 35A-1352 Who deemed specific and residuary legatees and devisees of incompetent under § 35A-1351
For purposes of G.S. 35A‑1351(5)a of this Article, if such paper‑writing provides for the residuary estate to be placed in trust for a term of...
- § 35A-1353 Notice to minors and incompetents under § 35A-1351
If any person, to whom notice must be given under the provisions of G.S. 35A‑1351(5) of this Article, is a minor or is incompetent, then...
- § 35A-1354 Objections to proposed declaration and gift; fact that incompetent had not previously made similar gifts
If any objection is filed by one to whom notice has been given under the terms of this Article, the clerk shall bring it to...
- § 35A-1355 Validity of declaration and gift
Such declaration and gift, when made with the approval of the judge and under the provisions of this Article, shall be deemed to be the...
- § 35A-1356 through 35A-1359 Reserved for future codification purposes
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...
