The Guardianship/Incompetency proceedings begin in the Incompetency Office on the 6th floor in room 600 of the Forsyth County Hall of Justice.
If you believe someone is unable to manage their own affairs or make their own decisions, perhaps due to injury or mental health issues, a petition may be filed before the Clerk of Superior Court to have the person adjudicated incompetent and to have a legal guardian appointed.
Click here for forms for this proceeding or find them in the incompetency office.
Upon the filing of the petition, the Clerk’s Office will set a court date for a hearing and a guardian ad litem (lawyer for the case) will be appointed to represent the Respondent (person alleged to be incompetent). An adjudication of incompetence results in the loss of many of the basic rights that we take for granted, such as the right to make decisions regarding one’s health care and medical treatment or where one lives. No matter how “obvious” a person’s incompetence may be to family members, every alleged incompetent person has a right to be heard by the court and insist that the petitioner demonstrate “clear, cogent and convincing” evidence that a guardian is necessary. The court-appointed guardian ad litem will ensure that the Respondent’s interests are known to the court.
Upon the filing of the petition, it is the responsibility of the petitioner to mail a copy of the Notice of Hearing and the Petition to all next of kin. Typically, a person’s next of kin will include the spouse, parents, children, and siblings. The next of kin must be listed in the petition.
The Forsyth County Clerk of Court will forward the Notice of Hearing and the petition to the Forsyth County Sheriff’s office for service.
PLEASE NOTE THE LAW REQUIRES THAT THE SHERIFF
PERSONALLY SERVE THE PETITION TO THE RESPONDENT.
An incompetency hearing is generally scheduled three (3) to four (4) weeks from the filing of the petition. This allows the Sheriff’s Department sufficient time to serve the Respondent with the petition, allows family members and other next of kin time to plan to attend the hearing if they wish, and provides an opportunity for the court-appointed attorney to make a personal visit with the Respondent and decide how best to represent him/her.
Please be advised of the following: If you believe there is an emergency situation that threatens the physical or financial well-being of the Respondent and feel a guardian is needed immediately to address the issue, please notify the Clerk’s Office. Our office will talk with you to determine whether an emergency hearing would be appropriate.
Examples of evidence in incompetency hearings include an affidavit(s) from a doctor, psychologist, or psychiatrist stating that, in the doctor’s opinion, the Respondent is incompetent and in need of a guardian, as well as any witnesses present in court and prepared to testify.
Alternatives to Guardianship and Incompetency:
For information about health care powers of attorney and living wills (health care directives), please visit the North Carolina Secretary of State’s Advanced Health Care Directive Registry. (http://www.secretary.state.nc.us/ahcdr/)