This nation is aging. And, despite the fact, that the largest generations ever are heading into their twilight years, we as a nation have done little to prevent the exploitation of this vulnerable population. In fact, instead of protection, exploitation has become a systemic part of our treatment toward the elderly at large. If a senior is not being taken for everything they are worth through the cost of long-term care, they are strips of their rights through the court system.
This is an issue that affects everyone. Not just because it’s a civil rights issue. Not just because it could happen to your loved one. But because we all age and it could happen to you too.
Criminal vs Incompetent
Picture this, you’ve been charged with a felony. You quickly begin to become appraised of every right you have with respect to the criminal justice process. You have the right to have a trial to challenge the State’s evidence and demonstrate your innocence. You also have the right an attorney to guide you through the whole process. Your trial will be before a knowledgeable judge, whom was either elected or appointed based on their merit. This judge not only has a law degree but is also likely extremely knowledgeable on the finer points of law.
At the trial, the State has the burden to prove your guilt, beyond a reasonable doubt, for each charge. The State must, therefore, convince a judge or a jury of your peers of this alleged guilt. If the State puts on evidence, you have the right to face your accusers, cross-examine witnesses, and challenge the expertise of so called “expert witnesses” before they can give testimony. Additionally, during the trial, your attorney and the judge will ensure that the State strictly adheres to the rules of evidence i.e., your attorney will object, and the judge will rule on these objections.
Lastly, short of an ethical violation, your attorney has to do what you want, even if it’s not in your best interest. If you want to take a deal with the State, that’s your choice. Perhaps, you’d rather go to trial, also your choice. The attorney works for you because it is your rights that you are enforcing through her.
Now picture something else. You’re in your twilight years and your memory starts to slip a bit. Perhaps you desire to stay home as long as possible and avoid nursing home care. You or your family arrange a service to begin assisting you with certain activities in your home. After a while, one of the helpers makes an anonymous report to the State. In this report, they indicate that perhaps you are in a vulnerable position at home and should be receiving facility care.
The State takes this report seriously and launches an investigation. They come out and speak to you and also visit your doctor. Your doctor has known you for years, so the slight decline seems all the more exaggerated. The doctor confirms your memory loss and indicates that facility care may be needed.
A few days later, you get a visit from the Sheriff’s department, serving you with a lawsuit—the state is seeking Guardianship of you.
A Guardianship is the name for the process by which an individual is adjudicated incompetent and made a Ward of the state. Ostensibly, this is the process by which someone can be appointed make decisions on behalf of an adult that lacks the mental capacity to act for themselves.
The Guardianship process essentially strips the individual of all rights and liberties and gives the State the power to determine what is in the Ward’s “best interest.” Just like a defendant being charged with a crime, the Ward may be placed in a “facility” against their wishes. A Guardianship also goes one step further and gives the State power over all of the individual’s money and property. Given those facts, it seems like it should be a pretty high bar, right? The answer is an unfortunate: not so much. Let’s look at the rights given to an individual in this situation.
The Right to Trial
A hearing must be had before someone can be adjudicated incompetent. However, this hearing is very different than a criminal trial in many aspects. In many states, including North Carolina, the person before which the hearing is held does not need to be a judge, nor do they even need to have a law license or law degree. The hearing, typically held before an assistant clerk, is broken down into two phases.
First, the court hears evidence as to whether the potential Ward (known as the “Respondent” at this point) is legally incompetent. The definition of legal incompetence is basically that the individual in question lacks capacity to make important decisions or manage their own affairs because of some underlying condition.
The Petitioner—the person bringing the petition (in this case, the State)—must prove the Respondent’s incompetence by “clear, convincing and cogent evidence.” This is what we call the “burden of proof” for the Petitioner. This standard is quite apparently lower than the “beyond a reasonable doubt” standard for criminal trials.
Phase one typically breaks down in the following manner. The Petitioner puts on evidence in the form of witness testimony. It is important to note, at this point, that while most rules of evidence strictly apply to Guardianship hearings, adherence to such rules aren’t strictly enforced by the Clerk (but more on this later). Thus, the witness testimony can be derived from any individual with personal knowledge of the Respondent’s mental capacity.
Next, the Petitioner submits some letter or sworn statement from a physician as to the competency of the Respondent. The physician is not required to be present at the hearing for this statement to be admitted. Most of the time, it’s a letter on the physician’s letterhead stating their diagnosis in a small paragraph. Just a letter with a signature, no notary, no penalty of perjury. Further, the physician does not even need to have evaluated them for the purposes of determining their competency. They could just be their regular general physician who may have observed them relatively lately.
After the Petitioner puts on all their evidence, the Respondent has the right to question/examine the Petitioner’s evidence, that is, if the Respondent is present. You read that correctly. A Guardianship hearing, one that is just as effective as a criminal hearing at deprivation of liberty, does not require the Respondent to be present.
After the Petitioner presents their case as to incompetency, the Clerk rules on whether or not the Petitioner has met their burden. If the Clerk finds the Respondent incompetent, the next phase is all about picking who the Guardian should be. If the State is bringing the Petition, this is simply a formality, unless challenged by family. If family bring the petition or choose to intervene to try and become the Guardian, they must give testimony. Typically, this results in a brutal and invasive grill session by the Petitioner or the Court.
Again, the Petitioner may or may not be present at the hearing. Even if they are present, they may or may not be questioned or get to testify on their own behalf, for either proving their competency or choosing their Guardian.
The Right to an Attorney
For every Guardianship case, the Court appoints a “Guardian ad Litem (GAL).” Essentially, the GAL is a neutral third-party attorney who is tasked with investigating the allegations in the Petition and giving a report to the court, giving a recommendation as to competency and who should be appointed Guardian.
Now, it’s a really weird, arguably unconstitutional, position that the GAL is in. The GAL is like a quasi-counsel for the Respondent. The GAL is tasked with “representing the best interests of the Respondent/Ward.” This is where things start to get odd. The “best interest” of the Respondent may be miles away from what the Respondent wishes. This means that, unlike a counsel in a criminal trial, your “attorney” can make decisions on your behalf despite whether you want them to or not. In fact, the GAL can be totally aligned with the Petitioner and, therefore, in a totally adversarial position to their wants, desires, rights, and liberties—yet, somehow, they represent them.
Even weirder, the GAL, in many cases, acts on behalf of the Respondent and decides whether or not they should show up to the hearing or be heard before the court. This is a lot of power for someone representing another person whom, ostensibly, has rights. That leads me to the weirdest part of all: the GAL can make these decisions on behalf of the Respondent before they are adjudicated incompetent. Thus, the GAL has the right to treat the Respondent as a Ward of the State long before the Petitioner has met their burden.
Outside counsel may be obtained by a Respondent. However, this part gets weird too. Despite the availability of the Respondent to hire outside counsel, it rarely actually happens. Typically, that’s because the GAL tells the Respondent that they represent them, leaving out the small detail about being able to totally act against the Respondent’s interest.
Smoke in Mirrors
There is a concept in the law that looks at the substance of a thing over its form. This means that something may seem to be one thing in name but is another in its function. A prime example is a corporation. A one-man shop with no board meetings, no separation of funds, and no separate officers may be called a “corporation”; however, it’s a sole proprietorship in its operation. Something similar is going on in the law regarding Guardianships.
One of the reasons Guardianships do not present as a civil rights issue at first glance is because the law regarding Guardianships seems to provide all the necessary safeguards. How this law is applied, however, is the issue.
Substance Over Form
Walk into any Guardianship hearing in the United States and you’ll be able to witness this the contrast between the substance of the law and the actual form in which these things go down. If you’ve ever witnessed another type of trial in-depth, a Guardianship might seem foreign to you. This is because the hearing has all the pomp and circumstance of a real trial but it’s the wild west out there.
Let’s dive deeper into this by looking at some the protections that must be invoked by the Respondent, if invoked at all. A Respondent can potentially require expert testimony, they can request a jury trial, the can subpoena evidence to bring to court on their behalf, and they can even question the physician as to their expertise and knowledge of the client. Here’s the problem. The rights must be invoked by the Respondent or someone representing the Respondent. It is rare that the Respondent is represented by outside counsel, so that means it falls on either the GAL or the Respondent to invoke these rights.
In consideration of that fact, it is important to note that, even if the Respondent doesn’t have some diminished capacity, they would still likely be unaware of their rights without outside counsel. This is because: 1. They are likely not an attorney themselves; and 2. The GAL isn’t going to tell them their rights. Remember, the GAL is in that weird quasi-counsel position. Typically, the GAL has already made a determination as to competency based on evidence in the file and just goes out to speak with the Respondent to confirm it.
It is at this point that one may think: “well, if they’re truly incompetent, then what’s the problem.” But, that type of thinking is exactly the problem. An individual, despite their level of diminished capacity, should be given properly legal counsel as to the extent of their rights—the same as a defendant, regardless of whether or not they committed the crime. The GAL shouldn’t be able to play judge, jury, and executioner by withholding information. However, they have been given free rein to do so because they are held to a different standard than other counsel.
Application of the Rules of Evidence
The rules of evidence are extremely important. These rules are the gate keepers of what is and what is not allowed in a hearing/trial. These rules keep the judge or jury from hearing things like irrelevant evidence, hearsay, and speculation from a non-expert. These rules keep the court strictly focused on the truth and on the matter at hand.
The rules of evidence apply to Guardianship hearings. However, they are “relaxed.” This relaxation of the rules of evidence provides a number of issues. 1. The relaxation seem to be for no other purpose than to compensate for using a clerk, whom was likely never formally educated on the rules of evidence (note: that regardless of whether a trial is a bench or jury trial, the judge rules on evidence). 2. The relaxation of the rules allow for an inconsistent application of evidentiary rules. The term “relaxation” doesn’t provide any bright-line guidance for how the rules are to be relaxed. Thus, the result is an arbitrary and capricious application of the rules of evidence, which make the hearings unpredictable, unequitable, and infuriating. 3. Finally, the most obvious problem with relaxing the rules of evidence is that the rules are there for a reason. They keep the bad stuff out and thereby protect the rights of the Respondent. A relaxation of the rules of evidence is just another manner in which the Rights of the Respondent are patently ignored.
Let’s put this in context by looking at a hypothetical example. Let’s say that a Petitioner is attempting to submit evidence of the Respondent’s alleged incompetence. To do so, they present a letter from the Respondent’s physician, on her letterhead, with her signature. This letter is the pivotal piece of evidence that will determine the clerk’s judgment regarding incompetency. It’s also technically inadmissible hearsay.
In any other hearing, that letter would be thrown out of court, followed shortly by the judges’ admonishment for the attempt to bring it in. However, in a Guardianship hearing, this is the key that will sway the clerk in her decision.
The impact of the relaxed rules of evidence cannot be overstated. One of the benefits of the rules of evidence is that it gives the judge a clear indication of what priority to give information flowing in. If the information is not admissible based on the rules, it gets ignored. If these rules are relaxed, the waters get muddied. The product of this relaxation is that the Clerk is inundated by a barrage of information, most of it being inadmissible or irrelevant to the issue at hand.
There’s an old Chinese saying, “muddy waters make it easier to catch fish.” A relation of the rules of evidence allows a Petitioner to stir the water, blinding the parties and confusing the issues. A Guardianship, more than any other type of hearing, gives the Petitioner the opportunity to mislead or straight up gaslight the court.
Imagine you start a basketball game, and the referee doesn’t know all the rules of the game. The beginning of the game may seem fine, but when it gets down to the critical calls, the lack of expertise will become abundantly clear. Guardianships are similar. Clerks can be knowledgeable and can handle certain legal procedures just fine; however, when the rules of evidence get in depth, the process starts to go haywire. Unfortunately, those are precisely the moments where an expert on the law is needed.
Intervention by Family
If the State seeks Guardianship of someone, the family may intervene. In fact, the family is given notice of the petition as required under statute. This, again, is one of those things that looks like may be a hurdle or may ensure the rights of the Respondent, but it’s misleading.
The family is given notice so that they may be heard by the court on the issue of who should be the Guardian. But, just showing up to court to testify won’t necessarily allow a family member to prevent the Respondent from being adjudged incompetent. Furthermore, the testimony from the family can be ignored by the Clerk. There is nothing saying that the Clerk must give any sort of weight to their testimony.
This is misleading because in any other matter in which a person is not a party, they don’t have a right to show up and be heard without intervention. If grandparents of a child want to testify in a child custody case, they must be called as a witness by one of the parties or be made a party to the case. They can’t just show up and speak to the court.
The weird part about a Guardianship, is that the family (next of kin) must be given notice but aren’t made a party to the action. That’s like asking the grandparents in a custody case to show up but not letting them assert their potential rights regarding the child, whether or not they’re the child’s caretaker.
To actually become a party to the case, the family member must 1. File a motion to intervene or 2. File their own petition for guardianship. Here’s where it gets even more muddy.
i. Intervention vs Petition
If a family member wants to become a party to the case, they have to consider whether to intervene or to petition the court. If the family member decides to bring their own petition, they’re not only stipulating to the issue of incompetence, but they’re also asserting their own allegations of incompetence. This is because the petition is specifically a “petition for adjudication of incompetence and application of letters of guardianship.” So, by bringing the petition, the family member is essentially making the same allegations as to incompetency as the original Petitioner. Thus, if the family member wants to fight the issue of incompetency, and perhaps become the Guardian if they fail, they must intervene.
The problem with intervention is that it’s rarely done. Because intervention is rarely done, many clerk’s offices have no idea what you’re trying to do and whether it’s proper. Many offices will simply tell the family member that the must file a petition to become a party. The family member may win on this issue but it’s more time, delay, and legal fees.
Another concerning substance over form issue is the statutory priority of whom should be appointed guardian. In the statute, it lists individuals by priority, family being given the top priority. Again, this seems like an awesome safeguard to ensure that Ward’s keep as much as their dignity as possible by having a close family member act on their behalf.
However, this statutory priority can be totally ignored by the Clerk because of a catchall provision found in many of the Guardianship statutes. This provision basically allows the Clerk to dispense with the priority if she finds that doing so is in the Ward’s best interest. In other words, the Clerk is given full discretion.
The most apparent problem with this bait and switch of a statutory provision is the opportunity, once again, to deprive the Respondent/Ward of their rights. The family member may, in fact, not be the right person to be the Guardian. However, many times, the family member may be more willing than a third party to consider the wishes of the Ward.
One of the reasons why no one is talking about the danger of adult guardianships is the substance over form issue. They seem to be chalked full of protections similar to any criminal proceeding or other action that could result in deprivation of liberty. However, the way that it plays out is much different. The gravity of this particular danger is that it prevents meaningful change. A legislative body is likely to not see the real issue if the read the law as it is. Just like any other insidious problem, it must be witnessed in action to truly comprehend it.
Arbitrary and Capricious
Magic, specifically the kind done on stage, is impressive because it tells you one thing and does another. The tricks and illusions are most effective when you think you know what’s going to happen and surprise! Your card was under your hat all along.
Similar to the trickery of a magician—and the substance over form issue discussed above—is the “best interest of the Ward standard, which applies both before and after a Guardianship is in place. This standard seems to provide a safeguard but actually fails where it’s important. Ostensibly, it appears on its face to require that all involved must act in the Ward’s best interest. However, in practice, it’s a standard that allows for the rationalization of actions just so long as they can be present as meeting the standard.
Best Interest of the Ward Standard
If this standard seems vague an overly broad, it’s because it is. It is important to understand that vagueness in the law gives someone lots of power. In constitutional law, if a law is written in a manner where it may be vague or may apply in an all-encompassing manner, it is stricken down. This is because it is known that these types of laws give the government more power than they should be allowed. After all, if I wanted to pass a law where I could affect your rights, you bet I’d make it as vague and overly broad as possible. That way, your actions, that I’d like to control, will more than likely fall under my law.
Another problem with a vague standard is the opportunity for an inconsistent application of the standard. One Clerk’s definition of the Ward’s best interest may indeed not be within the ballpark of another’s. This gives each Clerk extremely broad power to decide this standard without factors or guidelines. That’s an important point because, if their decision is appealed, how does one show that they abused their discretion? Without factors or guidelines, what is the basis for proving that the Clerk got it wrong? The absence of the ability to demonstrate the wrongful actions of an individual, is just a long way to say that they have power.
The Best Interest vs The Ward’s Wishes
What makes it worse is that the standard is a clear delineation from the wishes or desires of the Ward—even if those desires were expressed when the Ward was competent. This standard allows a Guardian to act in a manner that is blatantly contrary to the Ward’s clearly defined wishes if they can someone how spin their actions as fitting the standard.
In other areas of law, if someone creates an estate plan, which clearly defines their wishes, that document encompassing their wishes has a lot of weight. Let’s say that someone creates a will—we’ll call him “Bob”. In this will, they leave everything to their wife and child. At the same time, they made their brother their power of attorney. Later on, that brother uses that power of attorney to put the home and money in his name just before Bob’s death. If the wife and child decide to challenge brother’s use of that power of attorney, they’re going to point toward the will. The last will and testament will serve as a compelling piece of evidence in their lawsuit, which would very likely demonstrate that brother’s actions were an unlawful departure from Bob’s wishes.
This precedent gets all messed up when a Guardianship is in place. The Guardian can unequivocally depart from the wishes of the Ward without so much as a question from the court.
For example, let’s say a Ward created a Last Will and Testament, leaving their home to their children upon death. The Guardian decides that they need to sell the home to pay the long-term care facility in which the Guardian placed the Ward. Instead of working to protect the property, the Guardian sells the home to pay for the costly care that the Guardian initiated. They are essentially defying the Ward’s wishes to solve a problem they created.
Now, there are certainly situations where a Guardian would need to sell something like a home, notwithstanding the will. However, time and again the Guardian disrupts the Ward’s estate plan out of sheer laziness or selfish gain.
There are many ways to provide alternatives to facility care. Additionally, there are many ways to protect assets and have care paid for. However, Guardians do not initiate the help of an elder law attorney to create these plans. Nor do the Guardians attempt to have these plans approved by the Court. Furthermore, Courts do not seem to want to hear about how to protect the Ward’s assets and find alternatives to paying out of pocket for care (but more on this later).
Let’s put this in the context of an alternative to Guardianship. If I create a power of attorney document, which names someone to act on my behalf notwithstanding my incompetency, it will clearly define some parameters. Namely, it will lay out that they may act on my behalf but not against my wishes and not in a manner that disrupts my estate plan. I might lay out terms that require them to seek my thoughts or confirmation, even if my communication is rudimentary (like nodding or blinking) or even if I have diminished capacity. I would draft a power of attorney this way for a client to not only preserve their wishes, but also their dignity.
This standard is incredibly paternalistic. It is essentially saying “we do not care what you thought or now think. We will think for you and we know what’s best for you.”
The Money Game
If you really want to know what the Guardianship industry is all about, just follow the money. And there is a lot of money in Guardianships.
As of 2016, there were approximately 1.3 million adult guardianships in the United states, which includes an estimated $50 billion in the hands of guardians across the country. As medical technology allows folks to live longer, this number will grow.
These numbers serve as amorphous figures until we put them into perspective. Thus, it is important to understand that the Ward is footing the bill for everything. The Guardian(s) gets paid from the Ward’s assets and the Ward covers all the court fees associated with the Guardianship. The Ward even pays for the proceeding that took their rights from them. Those facts, in of themselves, are bad enough. However, another fatal flaw in the system is the manner in which Guardian’s get paid.
Above, we talked about Guardian getting paid from the Ward’s assets. The standard recurring payment is based on the Ward’s income. Additionally, Guardians get a commission of the Ward’s assets that are sold. This is an important point because this commission-based method of compensation incentivizes Guardians to sell off assets owned by the Ward—even if the sale is blatantly against the wishes of the Ward as set forth in their estate plan.
The commission method presents an even larger issue when the need for long-term care comes into play. Long-term care refers in-home, or facility assisted living or skilled nursing care. The average cost of long-term care can range anywhere from five thousand to ten thousand dollars a month. There are many methods of planning ahead to protect individuals and insulate their assets from the high costs of long-term care. However, Guardians are not incentivized to utilize such protections. It is much more profitable to sell off all the assets, take a commission, and pay the remaining proceeds to a long-term care facility.
Opportunity for Corruption
There’s an old concept in the law in regard to the appearance of the judiciary. Namely, the court should take all precautions to avoid the “appearance of impropriety.” While Guardianships don’t necessarily rise to the level of a tin-foil-hat conspiracy, the certainty hint at possible impropriety.
Clerks have a few choices when appointing a Guardian. They can choose the Petitioner, who is usually a family member and who has statutory priority over others (as discussed above). The Clerk may also choose a “neutral third party” to serve as either Guardian of the Person, Guardian of the Estate, or both.
Given the statutory priority, it would seem that Clerks would rarely choose to go with a third party. However, it happens all the time. There are a million reasons that Clerks can throw out for their decision e.g., family controversy, the need for ongoing legal counsel, the Petitioner had a speeding ticket five years ago, etc. All these reasons are supported on the basis of the “best interest of the Ward” carte blanche authority.
These neutral third parties who are chosen to serve as guardians typically make their living as professional guardians. Clerks typically have a short list of people that they pick from each time they need a third-party guardian. These professional guardians form a relationship with the clerks and tend to also serve a guardian ad litems in other hearings.
The closeness of this relationship is concerning for a couple reasons. First, it can easily set the foundation for a good-old-boy buddy system. Second, the Clerks begin to trust the professional guardians and oversight inevitable loosens. This not only gives professional guardians more latitude, but they are also treated more preferentially than non-professional guardians.
What Should be Done?
Least Restrictive Alternative First
The true importance of limiting this process is highlighted by the fact that a vast majority of guardianship petitions that are submitted result in a ruling of incompetency. An over seventy-percent incompetency rate is concerning in light of the fact that no litigation has a success rate even close to that.
Not everyone will have the foresight to execute a power of attorney. Although, if a power of attorney is in place (which would typically obviate the need for a guardian), then the court should be extremely cautious and have a clear and articulable basis for appointing a guardian in lieu of utilizing the power of attorney.
If there is no power of attorney in place and guardianship is needed, it should be severely limited. Expert medical testimony should be required to explain to the court the areas in which the Ward needs assistance. This testimony should be based on medical evidence and should comply with the rules of evidence.
The Clerk should only appoint a guardian for the purposes of assisting the Ward with those things that the court has found sufficient evidence, beyond a reasonable doubt, that the Ward is legally incompetent to perform for herself. The court should then have status reports made by the Guardian, supported by medical evidence. If the scope of the guardianship needs to be expanded because of the Ward’s deterioration, then another hearing should be required.
Judge as Finder of Fact
Each hearing with regard to a guardianship should be tried before a judge. The rules of evidence should apply strictly to the hearing and a knowledgeable judge should rule on the evidence presented. Further, a knowledgeable judge should explain the process and to the parties and ensure fairness in the proceedings.
Higher Burden of Proof
Since a guardianship is a deprivation of rights and liberties analogous to a criminal proceeding, the burden of proof should be “beyond a reasonable doubt.” This standard not only gives the Respondent more rights, but it also lends solemnity to the proceedings. It would help either the judge or the jury understand that a ruling of incompetence is a serious matter that has lasting consequences.
The higher burden of proof should also come with an elimination or alteration of the “best interest of the ward standard.” Eliminating the standard would allow for more strict parameters when making important decisions for the Ward. But, if the standard must stay, it should not be discretionary, it should be supported by articulable facts and subject to strict review.
Clarification and Limitation of Guardian ad litem’s Role
GALs have too much power. The court realizes to heavily on the opinion of the GAL, who, frankly, may have no business evaluating someone’s competency in the first place. Relying on expert testimony would eliminate the need to have a GAL testify as to competency.
Furthermore, the GAL should be required to fully explain their role and the fact that they do not actually represent the Respondent. They should inform the Respondent of their right to an attorney and encourage them to enforce that right.
Payment Should not Include Incentives to Sell
Guardians that do the job should be fairly compensated. However, there should not be an incentive to liquidate the Ward’s assets. In a perfect world, the payment system should also reward saving assets. Practically, this would require some type of taxpayer supported fund. Assuming that is likely out of the question, we should, at the very least, eliminate the commission-based incentive. This would also drive some of the “professionals,” who are in the business just to make a buck, out of the market.
There is a silent war on rights being raged every day. We have little understanding of the mind and how it deteriorates; yet, we treat Guardianships with all the certainty of a tax court hearing. This cavalier attitude towards the rights of the elderly has caused countless individuals to lose their basic freedoms and liberties that are supposed to be guaranteed by a free democracy. These are individuals who have worked hard their whole lives, paying millions in taxes, and the way we pay them back is to rubberstamp an order of incompetency without a second look.
A change is needed. This is a fatal flaw in the law that affects us all. There has been attempts to change that result in pats on the back but no real substance. Let’s make a real change. If you want to know how you can help, give us at McIntyre Elder Law a call at 704-259-7040 or visit our website at www.mcelderlaw.com.
Brenton S. Begley
Estate Planning & Elder Law Attorney
 I am licensed and I practice in North Carolina.
 The Clerk sits as ex officio judge, which means that, while the clerk isn’t a judge, the power to hold a hearing for Guardianships is implied by the fact that they’re a clerk.
 NCGS § 35A-1101 defines incompetency as…[A]n individual who lacks sufficient capacity to manage the adult’s own affairs or to make or communicate important decisions concerning the adult’s person, family, or property whether the lack of capacity is due to mental illness, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or similar cause or condition.
 This person makes a judgment as to competency despite not being a medical professional.
 Whatever that means.
 Some counties require a physician’s affidavit, which is 1. Easy to come by (because they don’t have to testify); and 2. Technically, expert testimony with no expert certification proceeding such testimony.
 This refers to a method by which an outside non-party becomes a party to a case. They must make a motion before the court and have the motion approved.
 National Center for State Courts, State court leaders strive to improve guardianship and conservatorship oversight, Backgrounder, Nov. 30, 2016, at https://www.ncsc.org/Newsroom/Backgrounder/2016/Guardianship.aspx
 The Clerk has the discretion to determine what is in the best interest of the Ward. To challenge their decision, one must show “abuse of discretion,” which is a tough burden for any appellant.