Guardianship is a legal process that allows someone to make decisions and provide care for another individual who cannot do so themselves. In North Carolina, determining incompetence is crucial in guardianship proceedings. Understanding what incompetence means is vital to ensure the protection and well-being of vulnerable individuals. In this blog, we will explore the concept of incompetence in guardianship proceedings in North Carolina.

What Does Incompetence Mean?

In North Carolina, incompetence has a legal definition as the inability of an individual to manage their affairs effectively due to the following:

  • Mental illness
  • Intellectual disability
  • Senility
  • Disease
  • Habitual drunkenness
  • Other causes.

This definition acknowledges that various conditions can render a person incapable of making sound decisions or caring for themselves. Incompetency is a condition in which a person may need another to act on their behalf. Due to a lack of competence, they can’t act in their own best interests.

Determining Incompetence

Determining incompetence is a complex process that requires a comprehensive evaluation of an individual’s mental capacity and ability to function independently. An incompetent person is lacking power to make decisions for themselves and may display a general ineptitude to handle life’s day-to-day activities. Often a loved one or family member will petition the court to make the crucial determination of incompetence.

Only a court is legally qualified to decide whether a person is legally incompetent and needs a guardian to make decisions on their behalf. Next, let’s look at factors a court may consider during this assessment.

Mental Capacity Assessment:

To determine incompetence, the court must assess an individual’s mental capacity to understand and make informed decisions. This assessment may involve medical and psychological evaluations, including interviews, cognitive tests, and reviews of medical records.

Ensuring the evaluation is thorough, objective, and considers the individual’s specific condition and circumstances is essential. In addition, the court may appoint a Guardian Ad Litem. This person, usually an attorney, investigates and interviews those involved. They review medical reports, talk with any neighbors or social workers, and discuss the situation with the family. They then make a recommendation potentially incompetent person’s best interests to the court

Functional Assessment

Incompetence extends beyond mere cognitive impairment. It also encompasses an individual’s ability to carry out activities necessary for daily living, such as managing finances, taking medications, and maintaining personal hygiene. A functional assessment examines an individual’s capacity to perform these tasks independently, which helps establish their need for a guardian’s assistance.

For example, a person who does not understand the concept of paying their bills shows utter incompetence in this one area. They may be perfectly capable of taking showers and making dinner. But when an area of a person’s life displays gross incompetence in handling a necessary life skill, their quality of life may suffer. This is where courts may decide a limited or full guardianship can help.

Expert Opinions

Guardianship proceedings often involve expert witnesses who provide professional opinions on an individual’s competence. These experts, such as psychiatrists or psychologists, can provide valuable insights into an individual’s mental health, cognitive abilities, and functional limitations. The court heavily relies on these opinions, along with the Guardian Ad Litem, when making determinations regarding incompetence.

The Role of Guardianship

When an individual is deemed incompetent, the court may appoint a guardian to protect their interests and make decisions for them. Various types of guardianships are available in North Carolina, such as general guardianship, limited guardianship, and guardianship of the estate.

The type of guardianship appointed depends on the specific needs and abilities of the individual.

Safeguarding Individual Rights

While guardianship protects vulnerable individuals, balancing the need for protection with the preservation of individual rights is crucial. Courts often select the type of guardianship that is the least restrictive option possible. A judge wants to ensure the individual’s autonomy and preferences are respected.

The court aims to tailor the guardianship arrangement to the individual’s unique needs, promoting their well-being and maximizing their independence to the extent possible.

Challenges and Limitations

The determination of incompetence in guardianship proceedings is not without challenges and limitations. The Defender Manual from the UNC School of Government highlights some of these concerns:


Evaluating an individual’s mental capacity can be subjective, and different professionals may arrive at different conclusions. This subjectivity calls for a robust evaluation process and the inclusion of multiple expert opinions to ensure fairness.

Stigma and Dignity

Labeling someone incompetent can carry social stigma and impact their sense of dignity. It is crucial for the court and all involved parties to approach the proceedings with sensitivity, respect, and a focus on the individual’s well-being.

For example, someone who displays incompetence in using their words to speak but who can effectively write thoughts down may argue that they do not need a guardian.

Review and Reassessment

Incompetence is not necessarily a permanent condition. Earlier incompetency does not necessarily mean someone will be incompetent 3 years later.

Regular review and reassessment of an individual’s abilities are necessary to adjust guardianship arrangements accordingly. This review process helps prevent unnecessary restrictions on an individual’s rights when their abilities improve over time.

If You’re Facing Accusations of Incompetence

Bringing in an experienced guardianship attorney is crucial if you’re accused of incompetence and believe you don’t need a guardian. In such situations, the assistance of a knowledgeable attorney can be instrumental in defending your rights and protecting you from potential exploitation.

Family members or others may try to manipulate your situation to gain control over family businesses or assets. An attorney with expertise in guardianship proceedings can help navigate the complex legal system, gather evidence, and present a strong case in your defense.

They can effectively challenge false accusations, advocate for your autonomy, and ensure that your wishes and best interests are considered throughout the proceedings. Their experience in dealing with similar situations can provide valuable insights and strategies to protect you from potential misuse of your situation by those seeking personal gain.

Bottom Line

Incompetence plays a central role in guardianship proceedings in North Carolina. Through a careful evaluation of an individual’s mental capacity and functional abilities, the court determines whether guardianship is necessary to protect their interests.

The process involves assessments from experts, consideration of individual rights, and a focus on tailoring the guardianship arrangement to the individual’s unique needs. Understanding the concept of incompetence and its implications is essential to ensure the well-being and autonomy of vulnerable individuals in the guardianship system.

Our Experienced Guardianship Attorneys Can Help

At Hopler, Wilms, and Hanna Law Firm, we understand the complexities and sensitive nature of guardianship proceedings. Our experienced guardianship attorneys can provide the support and guidance you need during this challenging time.

With a deep understanding of North Carolina’s guardianship laws and extensive experience in defending clients against accusations of incompetence, we are well-equipped to protect your rights and advocate for your autonomy. Our compassionate approach ensures we listen to your concerns, understand your unique circumstances, and develop a personalized legal strategy tailored to your needs.

We have successfully represented clients facing incompetence hearings and lacking the power to defend themselves. Our dedicated attorneys have experience as Guardian Ad Litem, representing the best interests of older adults in a voluntary capacity for the court system. We are committed to safeguarding your interests and ensuring a fair and just outcome.

When you choose Hopler, Wilms, and Hanna, you can rest assured that you have a skilled and knowledgeable advocate by your side, fighting for your rights and protecting your future.

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