Proving Incompetency

Aging, illness, and accidents can all diminish people’s capacity to care for themselves. If your spouse, your parent, or another loved one is no longer capable of taking care of himself or herself, you may need to pursue guardianship. Unfortunately, if the family cannot agree on the choice of a guardian, you will need a lawyer with the experience to help you advocate for your position.

At the Brady Cobin Law Group, PLLC, our knowledgeable Raleigh estate and elder law attorneys have more than 35 years of experience handling all types of guardianship and incompetency proceedings. We can help uncontested guardianship cases move smoothly through the process, and we can fight for the best interests of the ward in contested guardianship claims.

If you have questions about guardianship and incompetency proceedings, contact our respected North Carolina estate law firm today.

Declaring Incompetence in Elderly in North Carolina

Incompetence is determined in a court proceeding and means an adult is unable to manage his own affairs or is unable to make important decisions. Anyone may file a written request (a petition) with the clerk of superior court alleging that an adult (the respondent) should be declared incompetent.

You start the process of declaring a person mentally incompetent by going through a hearing before the Wake County Clerk of Court. This ensures that the person you want to declare incompetent has a chance to respond and defend himself or herself if necessary. At the same time that you are filing to have someone declared mentally incompetent, you are also filing to become their legal guardian.

In some cases, people are clearly physically or mentally unfit to care for themselves. In other cases, that person or others may resist your efforts. It can be a complex and emotional process to have someone declared incompetent.

It’s up to courts, not doctors, to say whether someone is incompetent. This is governed by state law so different states have different criteria. But overall, if someone is found in court to be incompetent, they often will be assigned a guardian or conservator to manage decisions on their behalf.

How to Become Guardian to an Incapacitated Adult in Raleigh, NC?

  • To begin an incompetency proceeding, you’ll need to file a Petition for Adjudication of Incompetence and Application for Appointment of Guardian or Limited Guardian with a superior court asking that a specific person is declared incompetent. The petition will lay out the reasons for the action and include a statement that the information is true. Our lawyers can help you fill out the forms and make sure that any documentation for the petition is correct.
  • If the petition is accepted, the court will schedule a hearing on the matter.
  • The court may also order medical and psychological evaluations of the person before the hearing. This will help establish important details that will inform the proceeding.
  • If the person already has a lawyer, that lawyer will represent him or her during the proceeding. If the person has no representation, the court may arrange for a representative called a guardian ad litem. This representative will act as the person’s voice during the proceedings.
  • The court will hear from both sides and decide whether the person in question is legally incompetent.
  • If the court finds the person to be incompetent, the court will select an appropriate guardian. The guardian’s duties and powers can be tailored to the situation and needs of the incompetent person.

While some guardianships are just a formality because the whole family agrees on who should be the guardian, other cases can be heavily contested between family members. It is important to talk to a knowledgeable attorney about your situation and what to expect moving forward.

An individual may be found to lack the capacity to manage their own affairs due to:

  • Mental illness
  • Intellectual or developmental disability
  • Senility (age-related dementia)
  • Illness/disease
  • An injury such as a traumatic brain injury, or TBI
  • Epilepsy
  • Cerebral palsy
  • Autism
  • Active alcoholism or habitual drunkenness

Admissibility of Evidence Showing Bad Decision Making

Showing poor judgment or wastefulness is not necessarily enough to prove that a person is incompetent. For example, an adult is allowed to spend or give away their money as they wish, even if it is detrimental to their own well-being.

It should be understood that courts tend to look more favorably today upon the prospects for individuals with certain mental and physical disabilities to function on their own.

Seeking Guardianship Over an Incapacitated Adult

An interested party may seek to establish a guardianship by filing a petition in the Superior Court in the county where the potential ward is located. In Raleigh, this would be Wake County Superior Court. The petition would describe the applicant, the situation, and the property and assets that may be involved.

A petition that asked for an individual to be declared incompetent would have to include evidence of the individual’s incapacity. This would be medical records, financial records, witness statements, and other evidence.

The Clerk of Court’s Office would then schedule a hearing and the Sheriff’s Office would notify the “respondent,” the subject of the incapacity petition, and give them a copy of the petition. The petitioner is required to mail copies of the petition and notice of the hearing to the respondent’s spouse and relatives.

The clerk of court may order medical, psychological, and social services evaluations of the respondent before the hearing. The petitioner or respondent may request such evaluations, too.

If the respondent does not have an attorney at the hearing, the Clerk of Superior Court will appoint one, known as a “guardian ad litem,” to represent him or her. The Court will pay the respondent’s legal fees if the respondent cannot. The petitioner may hire an attorney or proceed without legal advice but will be required to follow rules of civil procedure and evidence. The petitioner will be responsible for his or her own legal fees.

Once the respondent is properly represented, a hearing will proceed, and the petitioner will be responsible for presenting sufficient evidence to convince the Clerk that the respondent is incompetent. The respondent may challenge the petitioner’s evidence or present evidence of competency. The respondent may also challenge the petitioner’s eligibility or qualification to be his or her guardian.

If the Clerk agrees to establish a guardianship, the petitioner would be required to swear an oath to use the power of the guardianship for the benefit of the person to the best of their abilities and in accordance with the law. The guardian also must post a bond with the court.

The Clerk will then issue an order of guardianship that outlines the guardian’s duties, responsibilities, and authority. The Clerk will also give letters of guardianship to the guardian, which serve as legal proof of the guardianship and allow the guardian to act on behalf of the ward.

If the petitioner fails to convince the court that the respondent is incompetent to handle his or her own affairs, the Clerk will dismiss the petition, which closes the case.

Proving Incapacity During a Contested Guardianship

A petition for guardianship may be contested if the respondent, the attorney for the respondent, or another interested person contests the assertion that the individuals lack capacity or challenges the petitioner’s fitness to serve as a guardian.

A person ruled incompetent may lose many rights, including the right to enter into contracts, the right to possess or buy firearms and the right to serve on a jury. He or she also may lose North Carolina driving privileges. The guardian may have the authority to decide where and with whom the individual lives, what medical treatment he or she receives, how to handle the ward’s money and property. Also how to resolve legal claims or court cases involving the individual, and whether to enter into contracts on his or her behalf.

An adult declared incompetent retains the right to file motions or appeals in guardianship cases. He or she has the right to be represented by an attorney or guardian ad litem in these proceedings.

The person (or in some cases a corporation or some other entity) that challenges a competency petition or order would file objections with the court. The petitioner would be notified and would need to prepare for an adversarial hearing.

The respondent would use evidence similar to the petitioner’s to defend against an order of incompetency, such as:

  • Medical / psychological evaluations
  • Financial records/accountant’s statements
  • Witnesses testifying in their favor.

The respondent, through an attorney, might argue that there are less restrictive alternatives to guardianship such as a durable power of attorney and health care power of attorney that would suffice. The respondent might argue for a limited guardianship, which allows an individual to retain certain rights and privileges.

The respondent might also attack the petitioner’s motives or qualification for guardianship, such as by alleging financial conflicts of interest or exposing a criminal conviction in their background.

The structure of such a hearing would not change, but the process itself would be longer, potentially more emotional, and costlier.

A Clerk hearing an incompetency petition in North Carolina may decide to appoint someone other than the petitioner as guardian if that would better serve the interests of the ward. The guardian could be any competent adult, such as the ward’s spouse, another family member, friend or neighbor, or a professional guardian, such as a social worker with a mental health department. The Clerk could name a public agency or private corporation guardian if family members cannot agree on a guardian or there is no responsible family member available.

Our Raleigh Guardianship and Incompetency Lawyers Are Here for You

Whether you are working toward an uncontested guardianship or are facing a contested guardianship, the knowledgeable attorneys at the Brady Cobin Law Group stand ready to help. We work with families, courts, and health care experts to get people the protection and support they need.

If it’s time to establish a guardianship or initiate an incompetency proceeding for your loved one, call us or contact us online today.


Andrew Cobin helped me create an LLC. He was very easy to work with and always willing to answer my questions – and I ask a lot of questions! Thanks Andrew for the great customer service!

Review by: Lanier McRee
Reviewing: Estate Planning Legal Services
Date published: 03/01/2015
Rating: ★★★★★5 / 5 stars

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