GSNC

Subchapter I. Proceedings To Determine Incompetence.

Article 1. Determination of Incompetence.

§ 35A-1101. Definitions.

The following definitions apply in this Subchapter:

Autism — A physical disorder of the brain which causes disturbances in the developmental rate of physical, social, and language skills; abnormal responses to sensations; absence of or delay in speech or language; or abnormal ways of relating to people, objects, and events. Autism occurs sometimes by itself and sometimes in conjunction with other brain-functioning disorders.
Cerebral palsy. — A muscle dysfunction, characterized by impairment of movement, often combined with speech impairment, and caused by abnormality of or damage to the brain.
Clerk. — The clerk of superior court.
Designated agency. — The State or local human services agency designated by the clerk in the clerk’s order to prepare, cause to be prepared, or assemble a multidisciplinary evaluation and to perform other functions as the clerk may order. A designated agency includes, without limitation, State, local, regional, or area mental health, intellectual disability, vocational rehabilitation, public health, social service, and developmental disabilities agencies, and diagnostic evaluation centers.
Epilepsy. — A group of neurological conditions characterized by abnormal electrical-chemical discharge in the brain. This discharge is manifested in various forms of physical activity called seizures, which range from momentary lapses of consciousness to convulsive movements.
Guardian ad litem. — A guardian appointed pursuant to G.S. 1A-1 , Rule 17, Rules of Civil Procedure.
Incompetent adult. — An adult or emancipated minor 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.
Incompetent child. — A minor who is at least 17 1/2 years of age and who, other than by reason of minority, lacks sufficient capacity to make or communicate important decisions concerning the child’s person, family, or property whether the lack of capacity is due to mental illness, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, disease, injury, or similar cause or condition.
Indigent. — Unable to pay for legal representation and other necessary expenses of a proceeding brought under this Subchapter.
Inebriety. — The habitual use of alcohol or drugs rendering a person incompetent to transact ordinary business concerning the person’s estate, dangerous to person or property, cruel and intolerable to family, or unable to provide for family.
(10a) Intellectual disability. — Significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before age 22.
Interim guardian. — A guardian, appointed prior to adjudication of incompetence and for a temporary period, for a person who requires immediate intervention to address conditions that constitute imminent or foreseeable risk of harm to the person’s physical well-being or to the person’s estate.
Mental illness. — An illness that so lessens the capacity of a person to use self-control, judgment, and discretion in the conduct of the person’s affairs and social relations as to make it necessary or advisable for the person to be under treatment, care, supervision, guidance, or control. The term “mental illness” encompasses “mental disease”, “mental disorder”, “unsoundness of mind”, and “insanity”.
Repealed by Session Laws 2018-47, s. 1(b), effective October 1, 2018.
Multidisciplinary evaluation. — An evaluation that contains current medical, psychological, and social work evaluations as directed by the clerk and that may include current evaluations by professionals in other disciplines, including without limitation education, vocational rehabilitation, occupational therapy, vocational therapy, psychiatry, speech-and-hearing, and communications disorders. The evaluation is current if made not more than one year from the date on which it is presented to or considered by the court. The evaluation shall set forth the nature and extent of the disability and recommend a guardianship plan and program.
Respondent. — A person who is alleged to be incompetent in a proceeding under this Subchapter.
Treatment facility. — Has the same meaning as “facility” in G.S. 122C-3(14), and includes group homes, halfway houses, and other community-based residential facilities.
Ward. — A person who has been adjudicated incompetent or an adult or minor for whom a guardian has been appointed by a court of competent jurisdiction.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 11; 1997-443, s. 11A.11; 2018-47, s. 1(b).

Cross References.

For the Uniform Custodial Trust Act, see G.S. 33B-1 et seq.

Editor’s Note.

Session Laws 2018-47, s. 15, provides: “This act does not affect the coverage, eligibility, rights, responsibilities, or provision of State or federal services or benefits for individuals who have been diagnosed with mental retardation and whose diagnosis has not been changed to a diagnosis of intellectual disability.”

Session Laws 2018-47, s. 16, made the amendment of this section by Session Laws 2018-47, s. 1(b), effective October 1, 2018, and applicable to proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2018-47, s. 1(b), made stylistic changes throughout the section; rewrote the introductory language; in subdivisions (4), (7), and (8) substituted “intellectual disability” for “mental retardation”; added subdivision (10a); and repealed former subdivision (13), which read: “Mental retardation’ means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before age 22.” For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Holding, Dictum . . . Whatever,” see 25 N.C. Cent. L.J. 139 (2003).

CASE NOTES

Chapter Sets Out Sole Procedure for Determining Incompetency. —

Although G.S. 1A-1 , Rule 17 may have once allowed the trial court to conduct a competency hearing, that procedure was preempted on October 1, 1987, by the enactment of this Chapter, which sets forth the sole procedure for determining the incompetency of infants and adults. Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592, 1989 N.C. App. LEXIS 1112 (1989), rev'd, 327 N.C. 624 , 398 S.E.2d 323, 1990 N.C. LEXIS 986 (1990).

G.S. 35A-1102 has been amended to provide that nothing in G.S. 35A-1101 shall interfere with the authority of a judge to appoint a guardian ad litem for a party to litigation under G.S. 1A-1 , N.C. R. Civ. P. 17(b), and G.S. 35A-1101 et seq. sets forth the procedure for determining incompetency, which a trial judge must comply with when conducting a competency hearing under G.S. 1A-1 , N.C. R. Civ. P. 17. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45, 2005 N.C. App. LEXIS 2706 (2005).

G.S. 7B-1101.1 requires that a guardian ad litem be appointed in accordance with the provisions of G.S. 1A-1 , N.C. R. Civ. P. 17 to represent a parent, meaning that where an allegation is made that parental rights should be terminated, a trial court is required to conduct a hearing to determine whether a guardian ad litem should be appointed to represent the parent, and an allegation under G.S. 7B-1111(a)(6) serves as a triggering mechanism, alerting the trial court that it should conduct a hearing to determine whether a guardian ad litem should be appointed; at the hearing, the trial court must determine whether the parents are incompetent within the meaning of G.S. 35A-1101 , such that the individual would be unable to aid in their defense at the termination of parental rights proceeding, and the trial court should always keep in mind that the appointment of a guardian ad litem will divest the parent of their fundamental right to conduct his or her litigation according to their own judgment and inclination. In re J.A.A., 175 N.C. App. 66, 623 S.E.2d 45, 2005 N.C. App. LEXIS 2706 (2005).

Adjudication of Incompetency Must Be Within Perimeters of This Chapter. —

The language of G.S. 35A-1102 requires any adjudication of incompetency to take place within the perimeters of this Chapter, even if the person sought to be declared incompetent does not challenge the action. However, G.S. 1A-1 , Rule 17 still exists as a means of appointment of a guardian ad litem where incompetency has already been determined. Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592, 1989 N.C. App. LEXIS 1112 (1989), rev'd, 327 N.C. 624 , 398 S.E.2d 323, 1990 N.C. LEXIS 986 (1990).

Incompetency Resulting from Abuse. —

Plaintiff’s repression of memories and post-traumatic stress syndrome suffered as a result of her grandmother’s alleged sexual, physical, and emotional abuse rendered plaintiff “incompetent”, thereby tolling the statutes of limitations so that summary judgment for defendant was improper. Leonard v. England, 115 N.C. App. 103, 445 S.E.2d 50, 1994 N.C. App. LEXIS 559 (1994).

Finding of Competency Did Not Include Finding of Capacity to Provide Care and Supervision to Child. —

When the mother was adjudicated competent, it established only that the mother regained the capacity to manage the mother’s own affairs, not that the mother, facing a termination of parental rights petition, had the capacity to provide proper care and supervision for the child. In re A.H., 183 N.C. App. 609, 644 S.E.2d 635, 2007 N.C. App. LEXIS 1159 (2007).

This Chapter has had a significant impact on G.S. 1A-1 , Rule 25(b), which discusses the continuation of an action when one party becomes incompetent. In a situation where no incompetency adjudication has yet occurred, the action contemplated in the last clause of G.S. 1A-1 , Rule 25(b) would be referral of the competency issue to the clerk of superior court for action under this Chapter. Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592, 1989 N.C. App. LEXIS 1112 (1989), rev'd, 327 N.C. 624 , 398 S.E.2d 323, 1990 N.C. LEXIS 986 (1990).

“Incompetent Adult” Shown. —

Employee specifically alleged that after an alleged sexual assault, the employee was placed on medical leave by a psychiatrist, suffered a nervous breakdown, and could not manage the employee’s own affairs; thus, the employee sufficiently alleged that the employee was an incompetent adult under G.S. 35A-1101(7) . Fox v. Sara Lee Corp., 210 N.C. App. 706, 709 S.E.2d 496, 2011 N.C. App. LEXIS 639 (2011).

“Incompetent Adult” not Shown. —

“Incompetent adult” not shown within the meaning of subdivision (7) of this section where the adult was able to arrange for places to live, signed leases, cooked, went shopping, held several jobs, attended college, obtained driver’s licenses, drove vehicles, owned farmland, traveled and lived in foreign countries, produced a ballet, and created music. Soderlund v. Kuch, 143 N.C. App. 361, 546 S.E.2d 632, 2001 N.C. App. LEXIS 313 (2001).

The appropriate test for establishing an adult incompetent is one of mental competence to manage one’s own affairs. While there was competent evidence that a wife of an insurance policyholder was extremely and unfortunately injured by the accident, in and out of hospitals, and on and off of many painkillers, there was also evidence that she was able to name an attorney-in-fact to handle her insurance claims; the wife did not show sufficient competent evidence that her injury made her incapable of managing her own affairs to allow a disability tolling of the fraud statute of limitations under G.S. 1-52(9) . State Farm Fire & Cas. Co. v. Darsie, 161 N.C. App. 542, 589 S.E.2d 391, 2003 N.C. App. LEXIS 2257 (2003).

Statute vests discretion in the trial court, which may hold a hearing on appointing a guardian ad litem only for a parent who is incompetent, and the record established that the severity of the mother’s mental health problems was well known to the trial court, but they did not rise to the level of incompetency, and the record contained facts in keeping with a finding of competency, including in part that she attended a vocational rehabilitation program, plus her denial of disability benefits was some evidence to support a finding of competency; the trial court did not err in not inquiring into her competency before holding a hearing to terminate her rights. In re J.R.W., 237 N.C. App. 228, 765 S.E.2d 116, 2014 N.C. App. LEXIS 1173 (2014).

Issue of Incompetence Becomes Moot Upon Death. —

Sister’s petition to declare her brother incompetent was nugatory after the death of the brother and did not survive the death of the brother; thus, the appeal abated and became moot upon the brother’s death and was dismissed. In re Higgins, 160 N.C. App. 704, 587 S.E.2d 77, 2003 N.C. App. LEXIS 1908 (2003).

Appointment of Guardian Ad Litem. —

Trial court terminated a mother’s parental rights based on: (1) neglect; (2) wilfully leaving the children in foster care for more than 12 months without showing reasonable progress; (3) wilfully failing to provide financial support to the children; and (4) abandonment of the children for at least six months immediately preceding the filing of the petition for termination of parental rights; the mother did not request that a guardian ad litem (GAL) be appointed. Also, the petition for termination of her parental rights did not allege the mother’s incapability to parent the children, and no allegations were asserted, and no showing was made that the mother was incompetent; thus, the trial court was not required to appoint a GAL to the mother under either G.S. 7B-1101 and G.S. 35A-1101 , or G.S. 1A-1-17. In re D.H., 177 N.C. App. 700, 629 S.E.2d 920, 2006 N.C. App. LEXIS 1195 (2006).

It was not an abuse of discretion for the trial court to fail to inquire as to a mother’s competency as: (1) the mother testified at the disposition hearing and the adjudication hearing about her employment; (2) the mention of the mother’s emotional imbalance and a psychiatric evaluation, which found her to have a flare for dramatic behavior, to be easily excited, to be prone to emotional outbursts, to be overly sensitive to the opinions of others, and to be impulsive and rebellious, did not constitute a diagnosis of a mental health issue; (3) as the mother had made threats to harm the child, it was prudent to require a psychological evaluation before visitation resumed; and (4) doubting the mother’s ability to parent the child did not necessarily indicate that the mother was incapable of handling her affairs for G.S. 7B-1101.1(c) and G.S. 35A-1101 purposes. In re A.R.D., 204 N.C. App. 500, 694 S.E.2d 508, 2010 N.C. App. LEXIS 1001 , aff'd, 364 N.C. 596 , 704 S.E.2d 510, 2010 N.C. LEXIS 1075 (2010).

Trial court acting under G.S. 7B-1101.1(c) , must conduct a hearing in accordance with the procedures required under G.S. 1A-1 , N.C. R. Civ. P. 17, in order to determine whether there is a reasonable basis for believing that a parent is incompetent or has diminished capacity and cannot adequately act in his or her own interest; if the court chooses to exercise its discretion to appoint a guardian ad litem under G.S. 7B-1101.1(c) , then the trial court must specify the prong under which it is proceeding, including findings of fact supporting its decision, and specify the role that the guardian ad litem should play, whether one of substitution or assistance. In re P.D.R., 224 N.C. App. 460, 737 S.E.2d 152, 2012 N.C. App. LEXIS 1454 (2012).

When the trial court entered adjudication and disposition orders finding the mother’s two sons to be neglected and dependent juveniles, because the trial court determined that the mother could not adequately represent her own interests, and appointed a guardian ad litem (GAL) to represent her, conducting the adjudication and disposition hearings without the presence and participation of the GAL for the mother was error. In re D.L.P., 242 N.C. App. 597, 776 S.E.2d 241, 2015 N.C. App. LEXIS 694 (2015).

Because the psychologist who examined the mother diagnosed her with only a mild intellectual disability as she had been able to work and to attend school, she demonstrated that she had developed adaptive skills to lessen the impact of her disability, and, while working on her case plan, she completed empowerment classes to help address the issues of domestic violence in her relationship, the mother’s disability did not rise to the level of incompetence requiring the appointment of a guardian ad litem to safeguard her interests in the termination of parental rights case, and the district court did not abuse the court’s discretion when the court did not conduct an inquiry into the mother’s competency. In re Z.V.A., 373 N.C. 207 , 835 S.E.2d 425, 2019 N.C. LEXIS 1188 (2019).

§ 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 interfere with the authority of a judge to appoint a guardian ad litem for a party to litigation under Rule 17(b) of the North Carolina Rules of Civil Procedure.

History. 1987, c. 550, s. 1; 2003-236, s. 4.

Legal Periodicals.

For article, “Holding, Dictum . . . Whatever,” see 25 N.C. Cent. L.J. 139 (2003).

CASE NOTES

Chapter Sets Out Sole Procedure for Determining Incompetency. —

And Adjudication of Incompetency Must Be Within Perimeters of This Chapter. —

The language of this section requires any adjudication of incompetency to take place within the perimeters of this Chapter, even if the person sought to be declared incompetent does not challenge the action. However, G.S. 1A-1 , Rule 17 still exists as a means of appointment of a guardian ad litem where incompetency has already been determined. Culton v. Culton, 96 N.C. App. 620, 386 S.E.2d 592, 1989 N.C. App. LEXIS 1112 (1989), rev'd, 327 N.C. 624 , 398 S.E.2d 323, 1990 N.C. LEXIS 986 (1990).

Adult Must Be Declared Incompetent. —

The terms of a will may not create a guardianship for an adult heir who has not been declared incompetent through the provisions of Chapter 35A. In re Efird, 114 N.C. App. 638, 442 S.E.2d 381, 1994 N.C. App. LEXIS 435 (1994).

§ 35A-1103. Jurisdiction; venue.

The clerk in each county shall have original jurisdiction over proceedings under this Subchapter, subject to the rules set forth in Article 2 of Chapter 35B of the General Statutes.
Venue for proceedings under this Subchapter shall be in the county in which the respondent resides or is domiciled or is an inpatient in a treatment facility. If the county of residence or domicile cannot be determined, venue shall be in the county where the respondent is present.
If proceedings involving the same respondent are brought under this Subchapter in more than one county in which venue is proper, venue shall be in the county in which proceedings were commenced first.
If the clerk in the county in which a proceeding under this Subchapter is brought has an interest, direct or indirect, in the proceeding, jurisdiction with respect thereto shall be vested in any superior court judge residing or presiding in the district, and the jurisdiction of the superior court judge shall extend to all things which the clerk might have done.

History. 1987, c. 550, s. 1; 2019-113, s. 2.

Editor’s Note.

Session Laws 2019-113, s. 7, made the amendments to this section by Session Laws 2019-113, s. 2, effective July 11, 2019 and applicable to decedents dying, estates filed, and pleadings filed on or after that date.

Effect of Amendments.

Session Laws 2019-113, s. 2, substituted “this Subchapter, subject to the rules set forth in Article 2 of Chapter 35B of the General Statutes” for “this Subchapter.” in subsection (a). For effective date and applicability, see Editor’s note.

CASE NOTES

Clerk of Superior Court Retained Jurisdiction to Resolve Custody Dispute. —

Trial court lacked jurisdiction to determine custody of a daughter who had been adjudicated an incompetent adult under N.C. Gen. Stat. Chapter 35A because the clerk of superior court exercised its jurisdiction under Chapter 35A, to the exclusion of the trial court under G.S. 50-13.8 and retained jurisdiction to resolve the dispute regarding custody, and the parties were required to file a motion in the cause with the clerk to resolve the dispute; the clerk of superior court is the proper forum for determining custody disputes regarding a person previously adjudicated an incompetent adult and who has been provided a guardian under Chapter 35A. McKoy v. McKoy, 202 N.C. App. 509, 689 S.E.2d 590, 2010 N.C. App. LEXIS 277 (2010).

§ 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 to the respondent will result from a change of venue.

History. 1987, c. 550, s. 1.

§ 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 filed with the clerk by any person, including any State or local human services agency or healthcare provider through its authorized representative without the need for legal counsel.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 22; 1997-443, s. 11A.12; 2018-33, s. 45(a).

Effect of Amendments.

Session Laws 2018-33, s. 45(a), effective June 22, 2018, substituted “or healthcare provider through its authorized representative without the need for legal counsel” for “through its authorized representative.”

§ 35A-1106. Contents of petition.

The petition shall set forth, to the extent known:

The name, age, address, and county of residence of the respondent;
The name, address, and county of residence of the petitioner, and his interest in the proceeding;
A general statement of the respondent’s assets and liabilities with an estimate of the value of any property, including any compensation, insurance, pension, or allowance to which he is entitled;
A statement of the facts tending to show that the respondent is incompetent and the reason or reasons why the adjudication of incompetence is sought;
The name, address, and county of residence of the respondent’s next of kin and other persons known to have an interest in the proceeding;
Facts regarding the adjudication of respondent’s incompetence by a court of another state, if an adjudication is sought on that basis pursuant to G.S. 35A-1113(1).

History. 1987, c. 550, s. 1.

Editor’s Note.

G.S. 35A-1113(1), referred to in subdivision (6) of this section, was repealed by Session Laws 2016-72, s. 2, effective December 1, 2016, and applicable to multistate guardianship and protective proceedings initiated on or after that date. For present similar provisions, see Chapter 35B of the General Statutes.

§ 35A-1107. Right to counsel or guardian ad litem.

The respondent is entitled to be represented by counsel of his own choice or by an appointed guardian ad litem. Upon filing of the petition, an attorney shall be appointed as guardian ad litem to represent the respondent unless the respondent retains his own counsel, in which event the guardian ad litem may be discharged. Appointment and discharge of an appointed guardian ad litem shall be in accordance with rules adopted by the Office of Indigent Defense Services.
An attorney appointed as a guardian ad litem under this section shall represent the respondent until the petition is dismissed or until a guardian is appointed under Subchapter II of this Chapter. After being appointed, the guardian ad litem shall personally visit the respondent as soon as possible and shall make every reasonable effort to determine the respondent’s wishes regarding the incompetency proceeding and any proposed guardianship. The guardian ad litem shall present to the clerk the respondent’s express wishes at all relevant stages of the proceedings. The guardian ad litem also may make recommendations to the clerk concerning the respondent’s best interests if those interests differ from the respondent’s express wishes. In appropriate cases, the guardian ad litem shall consider the possibility of a limited guardianship and shall make recommendations to the clerk concerning the rights, powers, and privileges that the respondent should retain under a limited guardianship.

History. 1987, c. 550, s. 1; 2000-144, s. 33; 2003-236, s. 3.

Cross References.

For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.

OPINIONS OF ATTORNEY GENERAL

Appointment of Guardians Ad Litem in Incompetency Proceedings. — Based on this section and G.S. 35A-1130 , the Office of Indigent Defense Services has unambiguous authority to provide through its rules for appointments of guardians ad litem in incompetency proceedings. See opinion of Attorney General to Mr. Malcolm Ray Hunter, Director, Office of Indigent Defense Services, 2004 N.C. Op. Att'y Gen. 5 (3/11/04).

§ 35A-1108. Issuance of notice.

Within five days after filing of the petition, the clerk shall issue a written notice of the date, time, and place for a hearing on the petition, which shall be held not less than 10 days nor more than 30 days after service of the notice and petition on the respondent, unless the clerk extends the time for good cause, for preparation of a multidisciplinary evaluation as provided in G.S. 35A-1111 , or for the completion of a mediation.
If a multidisciplinary evaluation or mediation is ordered after a notice of hearing has been issued, the clerk may extend the time for hearing and issue a notice to the parties that the hearing has been continued, the reason therefor, and the date, time, and place of the new hearing, which shall not be less than 10 days nor more than 30 days after service of such notice on the respondent.
Subsequent notices to the parties shall be served as provided by G.S. 1A-1 , Rule 5, Rules of Civil Procedure, unless the clerk orders otherwise.

History. 1987, c. 550, s. 1; 2005-67, s. 2.

Editor’s Note.

Subsections (a) and (b), as amended by Session Laws 2005-67, s. 2, effective May 26, 2005, are applicable to all matters pending before a clerk or superior court on, or filed with the clerk after, the date the Supreme Court adopted rules implementing Session Laws 2005-67. The Rules Implementing Mediation in Matters Before the Clerk of Superior Court were adopted January 26, 2006.

§ 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 pursuant to G.S. 1A-1 , Rule 4, Rules of Civil Procedure. A sheriff who serves the notice and petition shall do so without demanding his fees in advance. The petitioner, within five days after filing the petition, shall mail or cause to be mailed, by first-class mail, copies of the notice and petition to the respondent’s next of kin alleged in the petition and any other persons the clerk may designate, unless such person has accepted notice. Proof of such mailing or acceptance shall be by affidavit or certificate of acceptance of notice filed with the clerk. The clerk shall mail, by first-class mail, copies of subsequent notices to the next of kin alleged in the petition and to such other persons as the clerk deems appropriate.
Expired August 1, 2020, pursuant to Session Laws 2020-3, s. 4.11(b).

History. 1987, c. 550, s. 1; 1989, c. 473, s. 18; 2020-3, s. 4.11(a).

Editor’s Note.

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments.

Session Laws 2020-3, s. 4.11(a), effective May 4, 2020, and expiring August 1, 2020, designated the existing provisions as subsection (a); and added subsection (b).

§ 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 by jury shall constitute a waiver of the right. The clerk may nevertheless require trial by jury in accordance with G.S. 1A-1 , Rule 39(b), Rules of Civil Procedure, by entering an order for trial by jury on his own motion. The jury shall be composed of 12 persons chosen from the county’s jury list in accordance with the provisions of Chapter 9 of the General Statutes.

History. 1987, c. 550, s. 1.

§ 35A-1111. Multidisciplinary evaluation.

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 clerk, on his own motion or the motion of any party, may order that a multidisciplinary evaluation of the respondent be performed. A request for a multidisciplinary evaluation shall be made in writing and filed with the clerk within 10 days after service of the petition on the respondent.
If a multidisciplinary evaluation is ordered, the clerk shall name a designated agency and order it to prepare, cause to be prepared, or assemble a current multidisciplinary evaluation of the respondent. The agency shall file the evaluation with the clerk not later than 30 days after the agency receives the clerk’s order. The multidisciplinary evaluation shall be filed in the proceeding for adjudication of incompetence, in the proceeding for appointment of a guardian under Subchapter II of this Chapter, or both. Unless otherwise ordered by the clerk, the agency shall send copies of the evaluation to the petitioner and the counsel or guardian ad litem for the respondent not later than 30 days after the agency receives the clerk’s order. The evaluation shall be kept under such conditions as directed by the clerk and its contents revealed only as directed by the clerk. The evaluation shall not be a public record and shall not be released except by order of the clerk.
If a multidisciplinary evaluation does not contain medical, psychological, or social work evaluations ordered by the clerk, the designated agency nevertheless shall file the evaluation with the clerk and send copies as required by subsection (b). In a transmittal letter, the agency shall explain why the evaluation does not contain such medical, psychological, or social work evaluations.
The clerk may order that the respondent attend a multidisciplinary evaluation for the purpose of being evaluated.
The multidisciplinary evaluation may be considered at the hearing for adjudication of incompetence, the hearing for appointment of a guardian under Subchapter II of this Chapter, or both.

History. 1987, c. 550, s. 1.

§ 35A-1112. Hearing on petition; adjudication order.

The hearing on the petition shall be at the date, time, and place set forth in the final notice of hearing and shall be open to the public unless the respondent or his counsel or guardian ad litem requests otherwise, in which event the clerk shall exclude all persons other than those directly involved in or testifying at the hearing.
The petitioner and the respondent are entitled to present testimony and documentary evidence, to subpoena witnesses and the production of documents, and to examine and cross-examine witnesses. If the petitioner is a State or local human service agency or a health care provider, evidence may be presented without the need for legal counsel. (b1) At the hearing on the petition, on the clerk’s own motion, the clerk may appoint an interim guardian pursuant to G.S. 35A-1114(d) and (e) if the clerk determines such an appointment to be in the best interests of the respondent.
The clerk shall dismiss the proceeding if the finder of fact, whether the clerk or a jury, does not find the respondent to be incompetent.
If the finder of fact, whether the clerk or the jury, finds by clear, cogent, and convincing evidence that the respondent is incompetent, the clerk shall enter an order adjudicating the respondent incompetent. The clerk may include in the order findings on the nature and extent of the ward’s incompetence.
Following an adjudication of incompetence, the clerk shall either appoint a guardian pursuant to Subchapter II of this Chapter or, for good cause shown, transfer the proceeding for the appointment of a guardian to any county identified in G.S. 35A-1103 . The transferring clerk shall enter a written order authorizing the transfer. The clerk in the transferring county shall transfer all original papers and documents, including the multidisciplinary evaluation, if any, to the transferee county and close his file with a copy of the adjudication order and transfer order.
If the adjudication occurs in any county other than the county of the respondent’s residence, a certified copy of the adjudication order shall be sent to the clerk in the county of the ward’s legal residence, to be filed and indexed as in a special proceeding of that county.
Except as provided in G.S. 35A-1114(f) , a proceeding filed under this Article may be voluntarily dismissed as provided in G.S. 1A-1 , Rule 41, Rules of Civil Procedure.

History. 1987, c. 550, s. 1; 2017-158, s. 7; 2018-33, s. 45(b).

Effect of Amendments.

Session Laws 2017-158, s. 7, effective July 21, 2017, added subsection (b1).

Session Laws 2018-33, s. 45(b), effective June 22, 2018, added the last sentence in subsection (b).

CASE NOTES

Burden of Proof. —

Incompetency must be proven by clear, cogent, and convincing evidence. In re Efird, 114 N.C. App. 638, 442 S.E.2d 381, 1994 N.C. App. LEXIS 435 (1994).

Because the order of incompetency was never entered, the clerk’s appointment of a guardian was without legal authority. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).

Because the incompetency order was effective only after its entry, the order could not be the law of the case. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).

Because the incompetency order was not filed, it was not entered, and the time period to file notice of appeal had not yet started. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).

Order Not Entered. —

Clerk orally rendered her decision finding respondent incompetent, and the order was reduced to writing and dated, but nothing indicated that the order was filed with the clerk of court, such that it was not entered. In re Thompson, 232 N.C. App. 224, 754 S.E.2d 168, 2014 N.C. App. LEXIS 152 (2014).

§ 35A-1113. [Repealed]

Repealed by Session Laws 2016-72, s. 2, effective December 1, 2016.

History. 1987, c. 550, s. 1; repealed by 2016-72, s. 2, effective December 1, 2016.

Editor’s Note.

Session Laws 2016-72, s. 4, provides: “This act becomes effective December 1, 2016, and applies to multistate guardianship and protective proceedings initiated on or after that date. Articles 1, 3, and 4 of Chapter 35B of the General Statutes, as enacted by Section 1 of this act, and G.S. 35B-22 and G.S. 35B-23 [now G.S. 35B-45 and G.S. 35B-46 ], as enacted by Section 1 of this act, apply to proceedings initiated prior to December 1, 2016, regardless of whether an incompetency, guardianship, or protective order has been issued.”

Former G.S. 35A-1113 pertained to adjudication of incompetence where incompetence was determined in another state.

§ 35A-1114. Appointment of interim guardian.

At the time of or subsequent to the filing of a petition under this Article, the petitioner or guardian ad litem may also file a verified motion with the clerk seeking the appointment of an interim guardian.
The motion filed by the petitioner or guardian ad litem shall set forth facts tending to show:
1. That there is reasonable cause to believe that the respondent is incompetent, and
2. One or both of the following:
  1. That the respondent is in a condition that constitutes or reasonably appears to constitute an imminent or foreseeable risk of harm to his physical well-being and that requires immediate intervention;
  2. That there is or reasonably appears to be an imminent or foreseeable risk of harm to the respondent’s estate that requires immediate intervention in order to protect the respondent’s interest, and
3. That the respondent needs an interim guardian to be appointed immediately to intervene on his behalf prior to the adjudication hearing.
Upon filing of the motion for appointment of an interim guardian by the petitioner or the guardian ad litem, the clerk shall immediately set a date, time, and place for a hearing on the motion.
(c1) The motion and notice setting the date, time, and place for the hearing shall be served promptly on the petitioner, the respondent and on his counsel or guardian ad litem, and other persons the clerk may designate. The hearing shall be held as soon as possible but not later than 15 days after the motion has been served on the respondent.
If at the hearing the clerk finds that there is reasonable cause to believe that the respondent is incompetent, and:
1. That the respondent is in a condition that constitutes or reasonably appears to constitute an imminent or foreseeable risk of harm to his physical well-being, and that there is immediate need for a guardian to provide consent or take other steps to protect the respondent, or
2. That there is or reasonably appears to be an imminent or foreseeable risk of harm to the respondent’s estate, and that immediate intervention is required in order to protect the respondent’s interest,
  the clerk shall immediately enter an order appointing an interim guardian.
The clerk’s order appointing an interim guardian shall include specific findings of fact to support the clerk’s conclusions, and shall set forth the interim guardian’s powers and duties. Such powers and duties shall be limited and shall extend only so far and so long as necessary to meet the conditions necessitating the appointment of an interim guardian. In any event, the interim guardianship shall terminate on the earliest of the following: the date specified in the clerk’s order; 45 days after entry of the clerk’s order unless the clerk, for good cause shown, extends that period for up to 45 additional days; when any guardians are appointed following an adjudication of incompetence; or when the petition is dismissed by the court. An interim guardian whose authority relates only to the person of the respondent shall not be required to post a bond. If the interim guardian has authority related to the respondent’s estate, the interim guardian shall post a bond in an amount determined by the clerk, with any conditions the clerk may impose, and shall render an account as directed by the clerk.
When a motion for appointment of an interim guardian has been made, the petitioner may voluntarily dismiss the petition for adjudication of incompetence only prior to the hearing on the motion for appointment of an interim guardian.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 12; 2017-158, s. 6; 2018-40, s. 10.

Effect of Amendments.

Session Laws 2017-158, s. 6, effective July 21, 2017, added “or guardian ad litem” following “the petitioner” in subsection (a); added “filed by the petitioner or guardian ad litem” following “The motion” in subsection (b); added “ filed by the petitioner or guardian ad litem” following “interim guardian” in subdivision (b)(3); and added subsection (c1).

Session Laws 2018-40, s. 10, effective June 22, 2018, deleted the last two sentences in subsection (c), which read: “The motion and a notice setting the date, time, and place for the hearing shall be served promptly on the respondent and on his counsel or guardian ad litem and other persons the clerk may designate. The hearing shall be held as soon as possible but no later than 15 days after the motion has been served on the respondent.”

§ 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 does not stay the appointment of a guardian unless so ordered by the superior court or the Court of Appeals. The Court of Appeals may request the Attorney General to represent the petitioner on any appeal by the respondent to the Appellate Division of the General Court of Justice, but the Department of Justice shall not be required to pay any of the costs of the appeal.

History. 1987, c. 550, s. 1.

CASE NOTES

Standing. —

Husband had standing to appeal the clerk of the trial court’s decision that the wife was incompetent to manage her own affairs. Pursuant to G.S. 35A-1115 , the husband was an interested part because he was entitled to notice of the incompetency proceeding. In re Winstead, 189 N.C. App. 145, 657 S.E.2d 411, 2008 N.C. App. LEXIS 417 (2008).

Appeal Allowed. —

Court of Appeals of North Carolina holds that G.S. 35A-1115 allows an aggrieved party to appeal from an order of the clerk of court determining the issue of incompetence, whether the order adjudges that the evidence was insufficient to establish that the respondent is incompetent, or whether the clerk adjudges that the respondent is incompetent. In re Dippel, 249 N.C. App. 610, 791 S.E.2d 684, 2016 N.C. App. LEXIS 1024 (2016).

Court of Appeals of North Carolina concludes, given the ubiquity of the right of appeal from the clerk of court to superior court and the absence of any limiting or restrictive language in the statute, that the only reasonable interpretation of G.S. 35A-1115 is that the statute allows appeal to superior court from any order of the clerk of court adjudicating the issue of incompetence. In re Dippel, 249 N.C. App. 610, 791 S.E.2d 684, 2016 N.C. App. LEXIS 1024 (2016).

Trial court erred by dismissing a son’s appeal from a superior court clerk’s order that his father was competent where there was no question that the son was an aggrieved party, and thus entitled to appeal, and the trial court had ruled without benefit of the instant opinion, which was the first to directly address the scope of G.S. 35A-1115 . In re Dippel, 249 N.C. App. 610, 791 S.E.2d 684, 2016 N.C. App. LEXIS 1024 (2016).

§ 35A-1116. Costs and fees.

Costs. — Except as otherwise provided herein, costs shall be assessed as in special proceedings. Costs, including any reasonable fees and expenses of counsel for the petitioner which the clerk, in his discretion, may allow, may be taxed against either party in the discretion of the court unless:
1. The clerk finds that the petitioner did not have reasonable grounds to bring the proceeding, in which case costs shall be taxed to the petitioner; or
2. The respondent is indigent, in which case the costs shall be waived by the clerk if not taxed against the petitioner as provided above or otherwise paid as provided in subsection (b) or (c).
Multidisciplinary Evaluation. — The cost of a multidisciplinary evaluation order pursuant to G.S. 35A-1111 shall be assessed as follows:
1. If the respondent is adjudicated incompetent and is not indigent, the cost shall be assessed against the respondent;
2. If the respondent is adjudicated incompetent and is indigent, the cost shall be borne by the Department of Health and Human Services;
3. If the respondent is not adjudicated incompetent, the cost may be taxed against either party, apportioned among the parties, or borne by the Department of Health and Human Services, in the discretion of the court.
Witness. — Witness fees shall be paid by:
1. The respondent, if the respondent is adjudicated incompetent and is not indigent;
2. The petitioner, if the respondent is not adjudicated incompetent and the clerk finds that there were not reasonable grounds to bring the proceeding; (2a) The petitioner for any of the petitioner’s witnesses, and the respondent for any of the respondent’s witnesses, when the clerk finds all of the following:
  1. There were reasonable grounds to bring the proceeding.
  2. The respondent was not adjudicated incompetent.
  3. The respondent is not indigent.
3. The Administrative Office of the Courts for witness fees for the respondent, if the respondent is indigent.
  (c1) Mediator. — Mediator fees and other costs associated with mediation shall be assessed in accordance with G.S. 7A-38.3 B.
  
  (c2) Guardian Ad Litem. — The fees of an appointed guardian ad litem shall be paid by:
  
  (1) The respondent, if:
  1. The respondent is adjudicated incompetent; and
  2. The respondent is not indigent.
    (2) The respondent, if:
    
    a. The respondent is not adjudicated incompetent;
    
    b. The clerk finds that there were reasonable grounds to bring the proceeding; and
  3. The respondent is not indigent.
    (3) The petitioner, if:
    
    a. The respondent is not adjudicated incompetent; and
    
    b. The clerk finds that there were not reasonable grounds to bring the proceedings.
4. The Office of Indigent Defense Services in all other cases.
The provisions of this section shall also apply to all parties to any proceedings under this Chapter, including a guardian who has been removed from office and the sureties on the guardian’s bond.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 15; 1995, c. 235, s. 9; 1997-443, s. 11A.118(a); 2005-67, s. 3; 2009-387, s. 1.

Editor’s Note.

Subsection (c1), added by Session Laws 2005-67, s. 3, effective May 26, 2005, is applicable to all matters pending before a clerk or superior court on, or filed with the clerk after, the date the Supreme Court adopted rules implementing Session Laws 2005-67. The Rules Implementing Mediation in Matters Before the Clerk of Superior Court were adopted January 26, 2006.

Effect of Amendments.

Session Laws 2009-387, s. 1, effective July 31, 2009, added the subsection headings in subsections (a) through (c); in subsection (c1), in the introductory language, deleted “and the fees of court-appointed counsel or guardian ad litem” preceding “shall be paid;” added subdivision (c)(2a), and in subdivision (c)(3), substituted “for witness fees for the respondent, if the respondent is indigent” for “in all other cases” at the end; and added subsection (c)(2).

§§ 35A-1117 through 35A-1119.

Reserved for future codification purposes.

Article 2. Appointment of Guardian.

§ 35A-1120. (Effective until October 1, 2021) Appointment of guardian.

If the respondent is adjudicated incompetent, a guardian or guardians shall be appointed in the manner provided for in Subchapter II of this Chapter.

History. 1987, c. 550, s. 1.

CASE NOTES

Death of Respondent Abated Appeal. —

Appointment Without Authority. —

§ 35A-1120. Appointment of guardian.

Except as otherwise provided in this Article, if the respondent is adjudicated incompetent, or proper application is made for appointment of the guardian of a minor under Article 6 of this Chapter, a guardian or guardians shall be appointed in the manner provided for in Subchapter II of this Chapter.

History. 1987, c. 550, s. 1; 2021-53, s. 2.1.

Editor’s Note.

Session Laws 2021-53, s. 2.3, made the rewriting of this section by Session Laws 2021-53, s. 2.1, effective October 1, 2021, and applicable to proceedings initiated on or after that date.

Session Laws 2021-53, s. 5.1, contains a severability clause.

Effect of Amendments.

Session Laws 2021-53, s. 2.1, rewrote the section, which read “If the respondent is adjudicated incompetent, a guardian or guardians shall be appointed in the manner provided for in Subchapter II of this Chapter.” For effective date and applicability, see editor’s note.

CASE NOTES

Death of Respondent Abated Appeal. —

Appointment Without Authority. —

§ 35A-1121. Authorization of a single protective arrangement or single transaction without appointing guardian.

If it is established in a proper proceeding that a basis exists for the appointment of a guardian of a minor or an incompetent person, the clerk of superior court, without appointing a guardian, may order a single protective arrangement or single transaction for the benefit of a minor or incompetent person as follows:
1. Authorize, direct, or ratify any transaction necessary or desirable to achieve any service, care, or safety arrangement meeting the foreseeable needs of the minor or incompetent person, and authorize a special fiduciary to execute any such transaction on behalf of the minor or incompetent person, including any of the following:
  1. The payment, delivery, deposit, or retention of funds or property.
  2. The sale, mortgage, lease, or other transfer of property in accordance with the requirements of subsection (c) of this section.
  3. The entry into an annuity contract, a contract for life care, a deposit contract, or a contract for training and education.
  4. The establishment, funding, or addition to a suitable trust, including, but not limited to, a trust for the benefit of the minor or incompetent person pursuant to 42 U.S.C. § 1396p(d)(4).
  5. The establishment, funding, or administration of an ABLE account, as defined in section 529A of the Internal Revenue Code.
2. Authorize, direct, or ratify any contract, trust, or other transaction relating to the minor or incompetent person’s property and business affairs, and authorize a special fiduciary to execute any such contract, trust, or other transaction on behalf of the minor or incompetent person, if the clerk of superior court determines that the transaction is in the best interest of the minor or incompetent person.
Before approving a protective arrangement or other transaction under this section, the clerk of superior court shall consider the interests of creditors and dependents of the minor or incompetent person and, in view of the disability, whether the minor or incompetent person needs the continuing protection of a guardian. The clerk of superior court may appoint a temporary guardian to assist in the accomplishment of any protective arrangement or other transaction authorized under this section who shall have the authority conferred by the order and serve until discharged by order after report to the clerk of superior court of all matters done pursuant to the order of appointment.
The sale, mortgage, exchange, lease, or gift of any property by a special fiduciary or temporary guardian appointed as provided in this section shall be subject to the same procedural and reporting requirements that would otherwise apply to the sale, mortgage, exchange, lease, or gift of such property by a guardian of the estate or general guardian, pursuant to this Chapter.

History. 2021-53, s. 2.2.

Editor’s Note.

Session Laws 2021-53, s. 2.3, made this section, as added by Session Laws 2021-53, s. 2.2, effective October 1, 2021, and applicable to proceedings initiated on or after that date.

Session Laws 2021-53, s. 5.1, contains a severability clause.

§§ 35A-1122 through 35A-1129.

Reserved for future codification purposes.

Article 3. Restoration to Competency.

§ 35A-1130. Proceedings before clerk.

The guardian, ward, or any other interested person may petition for restoration of the ward to competency by filing a motion in the cause of the incompetency proceeding with the clerk who is exercising jurisdiction therein. The motion shall be verified and shall set forth facts tending to show that the ward is competent.
Upon receipt of the motion, the clerk shall set a date, time, and place for a hearing, which shall be not less than 10 days or more than 30 days from service of the motion and notice of hearing on the ward and the guardian, or on the one of them who is not the petitioner, unless the clerk for good cause directs otherwise. The petitioner shall cause notice and a copy of the motion to be served on the guardian and ward (but not on one who is the petitioner) and any other parties to the incompetency proceeding. Service shall be in accordance with provisions of G.S. 1A-1 , Rule 4, Rules of Civil Procedure.
At the hearing on the motion, the ward shall be entitled to be represented by counsel or guardian ad litem, and a guardian ad litem shall be appointed in accordance with rules adopted by the Office of Indigent Defense Services if the ward is indigent and not represented by counsel. Upon motion of any party or the clerk’s own motion, the clerk may order a multidisciplinary evaluation. The ward has a right, upon request by him, his counsel, or his guardian ad litem to trial by jury. Failure to request a trial by jury shall constitute a waiver of the right. The clerk may nevertheless require trial by jury in accordance with G.S. 1A-1 , Rule 39(b), Rules of Civil Procedure, by entering an order for trial by jury on his own motion. Provided, if there is a jury in a proceeding for restoration to competency, it shall be a jury of six persons selected in accordance with the provisions of Chapter 9 of the General Statutes.
If the clerk or jury finds by a preponderance of the evidence that the ward is competent, the clerk shall enter an order adjudicating that the ward is restored to competency. Upon such adjudication, the ward is authorized to manage his or her affairs, make contracts, control and sell his or her property, both real and personal, and exercise all rights as if he or she had never been adjudicated incompetent. In addition, the clerk shall send a certified copy of the order adjudicating that the ward is restored to competency to the Division of Motor Vehicles.
The filing and approval of final accounts from the guardian and the discharge of the guardian shall be as provided in Subchapter II of this Chapter.
If the clerk or jury fails to find that the ward should be restored to competency, the clerk shall enter an order denying the petition. The ward may appeal from the clerk’s order to the superior court for trial de novo.

History. 1987, c. 550, s. 1; 2000-144, s. 34; 2015-165, s. 2.

Cross References.

For the Indigent Defense Services Act, see Chapter 7A, Subchapter IX, Article 39B, G.S. 7A-498 et seq.

Effect of Amendments.

Session Laws 2015-165, s. 2, effective October 1, 2015, added the third sentence of subsection (d); and made minor stylistic changes.

Legal Periodicals.

For note on guardianship and restoration to sanity, see 41 N.C.L. Rev. 279 (1963).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under former G.S. 35-4 and prior law.

Constitutionality of Section. —

Former section, requiring that only six freeholders (now six people chosen in accordance with the provisions of Chapter 9) shall be summoned to inquire into the sanity of the person alleged to be insane, is constitutional. Groves v. Ware, 182 N.C. 553 , 109 S.E. 568, 1921 N.C. LEXIS 270 (1921).

Section May Not Be Invoked by Person Committed to State Mental Institution. —

A person committed to a State mental institution under Article 3 of former Chapter 122 could not invoke the provisions of former G.S. 35-4 for restoration of sanity by jury trial. The remedy is by habeas corpus. In re Harris, 241 N.C. 179 , 84 S.E.2d 808, 1954 N.C. LEXIS 571 (1954).

Ex parte proceedings to remove a guardian of an insane person, without notice to such guardian, are void. Sims v. Sims, 121 N.C. 297 , 28 S.E. 407, 1897 N.C. LEXIS 229 (1897).

Clerk’s Authority to Reopen Proceeding. —

Clerk had original jurisdiction to appoint a guardian and could reopen the incompetency proceeding, where an interested party was not notified of the original proceeding. In re Ward, 337 N.C. 443 , 446 S.E.2d 40, 1994 N.C. LEXIS 402 (1994).

OPINIONS OF ATTORNEY GENERAL

Appointment of Guardians Ad Litem in Incompetency Proceedings. — Based on G.S. 35A-1107 and this section, the Office of Indigent Defense Services has unambiguous authority to provide through its rules for appointments of guardians ad litem in incompetency proceedings. See opinion of Attorney General to Mr. Malcolm Ray Hunter, Director, Office of Indigent Defense Services, 2004 N.C. Op. Att'y Gen. 5 (3/11/04).

§§ 35A-1131 through 35A-1200.

Reserved for future codification purposes.

Subchapter II. Guardian And Ward.

Article 4. Purpose and Scope; Jurisdiction; Venue.

§ 35A-1201. Purpose.

The General Assembly of North Carolina recognizes that:
1. Some minors and incompetent persons, regardless of where they are living, require the assistance of a guardian in order to help them exercise their rights, including the management of their property and personal affairs.
2. Incompetent persons who are not able to act effectively on their own behalf have a right to a qualified, responsible guardian.
3. The essential purpose of guardianship for an incompetent person is to replace the individual’s authority to make decisions with the authority of a guardian when the individual does not have adequate capacity to make such decisions.
4. Limiting the rights of an incompetent person by appointing a guardian for him should not be undertaken unless it is clear that a guardian will give the individual a fuller capacity for exercising his rights.
5. Guardianship should seek to preserve for the incompetent person the opportunity to exercise those rights that are within his comprehension and judgment, allowing for the possibility of error to the same degree as is allowed to persons who are not incompetent. To the maximum extent of his capabilities, an incompetent person should be permitted to participate as fully as possible in all decisions that will affect him.
6. Minors, because they are legally incompetent to transact business or give consent for most purposes, need responsible, accountable adults to handle property or benefits to which they are entitled. Parents are the natural guardians of the person of their minor children, but unemancipated minors, when they do not have natural guardians, need some other responsible, accountable adult to be responsible for their personal welfare and for personal decision-making on their behalf.
The purposes of this Subchapter are:
1. To establish standards and procedures for the appointment of guardians of the person, guardians of the estate, and general guardians for incompetent persons and for minors who need guardians;
2. To specify the powers and duties of such guardians;
3. To provide for the protection of the person and conservation of the estate of the ward through periodic accountings and reports; and
4. To provide for the termination of guardianships.

History. 1987, c. 550, s. 1.

Cross References.

For the Uniform Custodial Trust Act, see G.S. 33B-1 et seq.

Legal Periodicals.

For comment, “Compensating Post-Conception Prenatal Medical Malpractice While Respecting Life: A Recommendation to North Carolina Legislators,” see 29 Campbell L. Rev. 761 (2007).

CASE NOTES

Death of Respondent Abated Appeal. —

Appointment of Guardian Ad Litem. —

§ 35A-1202. Definitions.

The following definitions apply in this Subchapter:

Accounting. — The financial or status reports filed with the clerk, designated agency, respondent, or other person or party with whom the reports are required to be filed.
Clerk. — The clerk of superior court.
Designated agency. — The State or local human services agency designated by the clerk in an order to prepare, cause to be prepared, or assemble a multidisciplinary evaluation and to perform other functions as the clerk may order. A designated agency includes, without limitation, State, local, regional, or area mental health, intellectual disability, vocational rehabilitation, public health, social service, and developmental disabilities agencies, and diagnostic evaluation centers.
Disinterested public agent. — The director or assistant directors of a county department of social services. Except as provided in G.S. 35A-1213(f), the fact that a disinterested public agent provides financial assistance, services, or treatment to a ward does not disqualify that person from being appointed as guardian.
Estate. — Any interest in real property, choses in action, intangible personal property, and tangible personal property, and includes any interest in joint accounts or jointly held property.
Financial report. — The report filed by the guardian concerning all financial transactions, including receipts and expenditures of the ward’s money, sale of the ward’s property, or other transactions involving the ward’s property.
General guardian. — A guardian of both the estate and the person.
Guardian ad litem. — A guardian appointed pursuant to G.S. 1A-1 , Rule 17, Rules of Civil Procedure.
Guardian of the estate. — A guardian appointed solely for the purpose of managing the property, estate, and business affairs of a ward.
Guardian of the person. — A guardian appointed solely for the purpose of performing duties relating to the care, custody, and control of a ward.
Incompetent person. — A person who has been adjudicated to be an “incompetent adult” or “incompetent child” as defined in G.S. 35A-1101(7) or (8).
Minor. — A person who is under the age of 18, is not married, and has not been legally emancipated.
Multidisciplinary evaluation. — An evaluation that contains current medical, psychological, and social work evaluations as directed by the clerk and that may contain current evaluations by professionals in other disciplines, including without limitation education, vocational rehabilitation, occupational therapy, vocational therapy, psychiatry, speech-and-hearing, and communications disorders. The evaluation is current if made not more than one year from the date on which it is presented to or considered by the court. The evaluation shall set forth the nature and extent of the disability and recommend a guardianship plan and program.
Status report. — The report required by G.S. 35A-1242 to be filed by the general guardian or guardian of the person.
Ward. — A person who has been adjudicated incompetent or an adult or minor for whom a guardian has been appointed by a court of competent jurisdiction.

History. 1987, c. 550, s. 1; 1997-443, s. 11A.13; 2012-151, s. 12(b); 2014-100, s. 12D.4(a); 2018-47, s. 1(c).

Editor’s Note.

Session Laws 2018-47, s. 16, made the amendment of this section by Session Laws 2018-47, s. 1(c), effective October 1, 2018, and applicable to proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2012-151, s. 12(b), effective July 12, 2012, rewrote subdivision (4).

Session Laws 2014-100, s. 12D.4(a), effective October 1, 2014, deleted “A status report shall include a report of a recent medical and dental examination of the ward by one or more physicians or dentists, a report on the guardian’s performance of the duties set forth in this Chapter and in the clerk’s order appointing the guardian, and a report on the ward’s condition, needs, and development. The clerk may direct that the report contain other or different information. The report may also contain, without limitation, reports of mental health or mental retardation professionals, psychologists, social workers, persons in loco parentis, a member of a multidisciplinary evaluation team, a designated agency, a disinterested public agent or agency, a guardian ad litem, a guardian of the estate, an interim guardian, a successor guardian, an officer, official, employee or agent of the Department of Health and Human Services, or any other interested persons including, if applicable to the ward’s situation, group home parents or supervisors, employers, members of the staff of a treatment facility, or foster parents” at the end of subdivision (14).

Session Laws 2018-47, s. 1(c), made stylistic changes throughout the section; rewrote the introductory language; and in subdivision (3) substituted “intellectual disability” for “mental retardation.” For effective date and applicability, see editor’s note.

Legal Periodicals.

For article, “Failing to Serve and Protect: A Proposal for an Amendment to a Juvenile’s Right to a Parent, Guardian, or Custodian During a Police Interrogation After State v. Oglesby,” see 86 N.C.L. Rev. 1685 (2008).

CASE NOTES

Related Custody Action Moot. —

When a stepmother was granted ex parte temporary custody of orphaned stepchildren, an aunt’s subsequent guardianship petition made the custody action moot because: (1) in the guardianship case, the clerk properly exercised jurisdiction, as the children had no natural guardian, and the clerk’s jurisdiction was not divested by the ex parte temporary custody order, since the clerk considered other courts’ custody awards, so the clerk had jurisdiction to appoint the children’s general guardians, an incident of which was physical custody, and (2) any guardianship modification, including custody modification, required filing a motion with the clerk instead of a district court custody action. Corbett v. Lynch, 251 N.C. App. 40, 795 S.E.2d 564, 2016 N.C. App. LEXIS 1315 (2016).

§ 35A-1203. Jurisdiction; authority of clerk.

Clerks of superior court in their respective counties have original jurisdiction for the appointment of guardians of the person, guardians of the estate, or general guardians for incompetent persons and of related proceedings brought or filed under this Subchapter. Clerks of superior court in their respective counties have original jurisdiction for the appointment of guardians of the estate for minors, for the appointment of guardians of the person or general guardians for minors who have no natural guardian, and of related proceedings brought or filed under this Subchapter.
The clerk shall retain jurisdiction following appointment of a guardian in order to assure compliance with the clerk’s orders and those of the superior court. The clerk shall have authority to remove a guardian for cause and shall appoint a successor guardian, following the criteria set forth in G.S. 35A-1213 or G.S. 35A-1224 , after removal, death, or resignation of a guardian.
The clerk shall have authority to determine disputes between guardians and to adjust the amount of the guardian’s bond.
Any party or any other interested person may petition the clerk to exercise the authority conferred on the clerk by this section.
Where a guardian or trustee has been appointed for a ward under former Chapter 33 or former Chapter 35 of the General Statutes, the clerk, upon his own motion or the motion of that guardian or trustee or any other interested person, may designate that guardian or trustee or appoint another qualified person as guardian of the person, guardian of the estate, or general guardian of the ward under this Chapter; provided, the authority of a guardian or trustee properly appointed under former Chapter 33 or former Chapter 35 of the General Statutes to continue serving in that capacity is not dependent on such motion and designation.

History. 1987, c. 550, s. 1; 2003-13, s. 3.

Editor’s Note.

Chapter 33 and most of Chapter 35, referred to in this section, have been repealed and/or recodified. As to incompetency and guardianship, see now Chapter 35A, G.S. 35A-1101 et seq.

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under former G.S. 33-1 and prior law.

Clerk’s Authority to Reopen Proceeding. —

The powers which a court of equity formerly exercised in regard to orphans and their estates are now conferred upon the clerk of the superior court by former G.S. 33-1 and G.S. 33-6. Duffy v. Williams, 133 N.C. 195 , 45 S.E. 548, 1903 N.C. LEXIS 42 (1903).

The superior court has no power to appoint a general guardian, in the absence of other matters of which the court has jurisdiction. In re Simmons, 266 N.C. 702 , 147 S.E.2d 231, 1966 N.C. LEXIS 1424 (1966).

Residence of Infant. —

The word “reside” as used in this section, relating to the appointment of guardians, has been construed to mean the domicile of the infant. And a legitimate child, whose father is alive, takes at birth, and continues during minority, the domicile of his father, following it as it changes. Upon the death of the father his domicile at death continues to be the domicile of his minor child until the domicile of such child is legally changed. In re Hall's Guardianship, 235 N.C. 697 , 71 S.E.2d 140, 1952 N.C. LEXIS 476 (1952).

Where both parents of an infant are dead and he is taken to the home of his paternal grandparents and resides with them, regardless of what theretofore may have been his domicile, the domicile of his grandparents then becomes his domicile. Hence, the clerk of superior court of the county in which the grandparents reside has jurisdiction of him. In re Hall's Guardianship, 235 N.C. 697 , 71 S.E.2d 140, 1952 N.C. LEXIS 476 (1952).

Appointment by General Assembly. —

An act of the General Assembly authorizing a certain person “to act as guardian” of another without giving bond, is constitutional, and is in itself an appointment without intervention of the clerk. Henderson v. Bowed, 116 N.C. 795 , 21 S.E. 692, 1895 N.C. LEXIS 282 (1895).

The appointment of a guardian is a matter of discretion, the exercise of which cannot be reviewable by the Supreme Court. Battle v. Vick, 15 N.C. 294 , 1833 N.C. LEXIS 92 (1833).

Not Bound by Choice of the Minor. —

In early cases it was held that the court in appointing a guardian was not bound by the choice of the minor, but could appoint the person, who, in its discretion, would best perform the duty. Wynne v. Always, 5 N.C. 38 , 1804 N.C. LEXIS 6 3 (1804); Grant v. Whitaker, 5 N.C. 231 , 1809 N.C. LEXIS 6 (1809).

Person Related to Ward. —

Courts are empowered to appoint as guardian such person as they may think proper, without regard to the kinship of the guardian to the ward. Mills v. McAllister, 2 N.C. 303 , 1796 N.C. LEXIS 43 (1796).

Custody of Child. —

The jurisdiction of superior court clerks in the appointment of guardians of infants, etc., does not extend to a case where the petitioner asks for the custody of a child who had been placed by its mother under the control of another. In re Lewis, 88 N.C. 31 , 1883 N.C. LEXIS 13 (1883).

Custody of Incompetent Adult. —

District court has concurrent jurisdiction with the clerk of superior court with respect to custody of disabled adult children because the district court obtains jurisdiction under G.S. 50-13.8 to determine custody only when the disabled adult child at issue has not been declared incompetent and had a guardian appointed; while the superior court clerk retains jurisdiction over all guardianship matters under N.C. Gen. Stat. Chapter 35A, obviously not all disabled adult children are declared incompetent and provided guardians, and in those instances, G.S. 50-13.8 fills the gap, authorizing the district court to determine custody. McKoy v. McKoy, 202 N.C. App. 509, 689 S.E.2d 590, 2010 N.C. App. LEXIS 277 (2010).

Removal of Guardian. —

A ward may not bring an action in the superior court by her next friend to remove her guardian appointed by the clerk. Moses v. Moses, 204 N.C. 657 , 169 S.E. 273, 1933 N.C. LEXIS 226 (1933).

Termination of Guardianship When Ward Reaches Majority. —

When one is appointed as guardian for a minor, his right to act terminates when the ward reaches his majority. In re Simmons, 256 N.C. 184 , 123 S.E.2d 614, 1962 N.C. LEXIS 433 (1962).

Contractual Relationship with Defendant. —

In a case in which plaintiff appealed from an order dismissing her claims for lack of subject matter jurisdiction, the appellate court agreed with plaintiff that the district court has jurisdiction to hear plaintiff’s claim regarding her contractual relationship with defendant, in her individual capacity. Accordingly, the appellate court reversed the district court’s order to the extent that it dismissed plaintiff’s claim against defendant, in her individual capacity, for $20,499.52. Morgan-McCoart v. Matchette, 244 N.C. App. 643, 781 S.E.2d 809, 2016 N.C. App. LEXIS 44 (2016).

OPINIONS OF ATTORNEY GENERAL

A clerk of superior court may appoint a guardian of the person when there is no natural guardian for a minor. See opinion of Attorney General to Ms. Diana Morgan, Assistant Clerk of Superior Court, Brunswick County, 54 N.C.A.G. 31 (1984), rendered under former G.S. 33-1 .

Clerk of Court as “Court of Competent Jurisdiction.” — If a purchaser or beneficiary of a preneed contract has been adjudicated incompetent, the clerk of the superior court is a “court of competent jurisdiction” and a hearing should be held in order for the clerk to make findings establishing that it is in the best interest of the ward to revoke the contract. See opinion of Attorney General to Mr. William R. Hoke, Attorney for the North Carolina State Board of Mortuary Science, — N.C.A.G. — (November 3, 1995).

§ 35A-1204. Venue.

Venue for the appointment of a guardian for an incompetent person is in the county in which the person was adjudicated to be incompetent unless the clerk in that county has transferred the matter to a different county, in which case venue is in the county to which the matter has been transferred.
Venue for the appointment of a guardian for a minor is in the county in which the minor resides or is domiciled.
Venue for the appointment of an ancillary guardian for a nonresident of the State of North Carolina who is a minor or who has been adjudicated incompetent in another state, and who has a guardian of the estate or general guardian in the state of his residence, is in any county in which is located real estate in which the nonresident ward has an ownership or other interest, or if the nonresident ward has no such interest in real estate, any county in which the nonresident owns or has an interest in personal property.

History. 1987, c. 550, s. 1.

CASE NOTES

Editor’s Note. —

The case cited below was decided under former G.S. 33-1 .

Residence of Infant. —

The word “reside” as used in former G.S. 33-1 relating to the appointment of guardians has been construed to mean the domicile of the infant. And a legitimate child, whose father is alive, takes at birth, and continues during minority, the domicile of his father — following is as it changes. Upon the death of the father his domicile at death continues to be the domicile of his minor child until the domicile of such child is legally changed. In re Hall's Guardianship, 235 N.C. 697 , 71 S.E.2d 140, 1952 N.C. LEXIS 476 (1952).

§ 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 or on the court’s own motion, for good cause order that the matter be transferred to a different county. The transferring clerk shall enter a written order directing the transfer under such conditions as the clerk specifies. The clerk in the transferring county shall transfer all original papers, documents, and orders from the guardianship and the incompetency proceeding, if any, to the clerk of the transferee county, along with the order directing the transfer. The clerk in the transferee county shall docket and file the papers in the estates division as a basis for jurisdiction in all subsequent proceedings. The clerk in the transferring county shall close his file with a copy of the transfer order and any order adjudicating incompetence or appointing a guardian.

History. 1987, c. 550, s. 1.

§ 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 clerk and sealed with the clerk’s seal of office. In all cases, the clerk shall specify in the order and letters of appointment whether the guardian is a guardian of the estate, a guardian of the person, or a general guardian.

History. 1987, c. 550, s. 1.

CASE NOTES

Editor’s Note. —

The case cited below was decided under former law.

The appointment of a guardian can be shown only by the records in the office of the clerk of the superior court by whom the appointment was made, or by letters of appointment issued by the clerk, and parol evidence tending to show appointment is incompetent. Buncombe County v. Cain, 210 N.C. 766 , 188 S.E. 399, 1936 N.C. LEXIS 221 (1936).

§ 35A-1207. Motions in the cause.

Any interested person may file a motion in the cause with the clerk in the county where a guardianship is docketed to request modification of the order appointing a guardian or guardians or consideration of any matter pertaining to the guardianship.
The clerk shall treat all such requests, however labeled, as motions in the cause.
A movant under this section shall obtain from the clerk a time, date, and place for a hearing on the motion, and shall serve the motion and notice of hearing on all other parties and such other persons as the clerk directs as provided by G.S. 1A-1 , Rule 5 of the Rules of Civil Procedure, unless the clerk orders otherwise.
If the clerk finds reasonable cause to believe that an emergency exists that threatens the physical well-being of the ward or constitutes a risk of substantial injury to the ward’s estate, the clerk may enter an appropriate ex parte order to address the emergency pending the disposition of the matter at the hearing.

History. 1987, c. 550, s. 1.

CASE NOTES

Chapter 35A contemplates a spousal support obligation. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

Any interested person, including a spouse, may seek payment of an obligation from an incompetent’s estate by filing a motion in the cause under this section. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

The duty to provide support to a dependent spouse is a continuing obligation, fairly chargeable to the estate of an incompetent; therefore, incompetent’s wife’s complaint for support stated a legally recognized claim. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

Clerk of Superior Court Has Power to Determine Whether Incompetent’s Spouse Is Granted Support. —

The clerk of superior court—after first ensuring that the estate is ample to meet the expenses of caring for the incompetent has residual equitable power under Chapter 35A to examine the facts and circumstances of the case to determine whether the incompetent’s spouse should be granted support from her husband’s estate and the right to continue to live in his home; factors the clerk may consider include the size and condition of the estate, the present and future demands against it, and the spouse’s needs. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

Clerk of Superior Court Retained Jurisdiction to Resolve Custody Dispute. —

The district court was not the proper forum in which to seek spousal support from the estate of an incompetent; the superior court is the only proper division to hear matters regarding the administration of incompetents’ estates; therefore, the incompetent’s spouse should have made her demand for support before the clerk of superior court either as a motion in the cause pursuant to this section, or as a special proceeding for the sale of her husband’s property under G.S. 35A-1307 . Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

The estate of an incompetent may not be so depleted in favor of a spouse as to compromise the quality of care provided to the incompetent, or to force the incompetent to become a public charge; rather, in the limited instance in which an incompetent’s estate is ample to provide for his own care and maintenance, an award of spousal support may properly be charged against the estate. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

If the guardian questions the propriety of a particular charge against the estate, he may seek prior court approval before making payment by filing a motion in the cause with the superior court clerk. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

§ 35A-1208. Authority for health care decisions.

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 suspending the authority of a health care agent, as that term is defined in G.S. 32A-16(2) .
A guardian of the person or general guardian of an incompetent adult may not revoke a Declaration, as that term is defined in G.S. 90-321.

History. 2007-502, s. 8.

§ 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 with the clerk. The application may be joined with or filed subsequent to a petition for the adjudication of incompetence under Subchapter I of this Chapter. The application shall set forth, to the extent known and to the extent such information is not already a matter of record in the case:

The name, age, address, and county of residence of the ward or respondent;
The name, address, and county of residence of the applicant, his relationship if any to the respondent or ward, and his interest in the proceeding;
The name, address, and county of residence of the respondent’s next to kin and other persons known to have an interest in the proceeding;
A general statement of the ward’s or respondent’s assets and liabilities with an estimate of the value of any property, including any income and receivables to which he is entitled; and
Whether the applicant seeks the appointment of a guardian of the person, a guardian of the estate, or a general guardian, and whom the applicant recommends or seeks to have appointed as such guardian or guardians.

History. 1987, c. 550, s. 1.

Cross References.

As to service of summons upon a person under a disability, see G.S. 1A-1 , Rule 4.

As to right of surviving spouse to claim an elective share, see G.S. 30-3.1 et seq.

As to right of alleged incompetent to examine his will filed with the clerk, see G.S. 31-11 .

As to appointment, duties, etc., of guardian generally, see G.S. 35A-1101 et seq.

As to bond required of guardian, see G.S. 35A-1230 et seq.

As to guardian’s power to claim benefits under Workers’ Compensation Act, see G.S. 97-49 .

For the Mental Health, Developmental Disabilities and Substance Abuse Act, see Chapter 122C.

Legal Periodicals.

For note on requirement of notice for appointment of guardians ad litem and next friends, see 48 N.C.L. Rev. 92 (1969).

For survey of 1977 law on health care regulation, see 56 N.C.L. Rev. 857 (1978).

CASE NOTES

Analysis

I. General Consideration
II. Inability to Manage Own Affairs
III. Appointment of Guardian

I.General Consideration

Editor’s Note. —

Many of the cases cited below were decided under former G.S. 35-1.6 and 35-2 and prior law.

Nature of Proceeding. —

An inquisition under this section as regards the person whose sanity is in question is a proceeding in personam; as it affects his property is a proceeding in rem. Such an inquisition is certainly not a criminal action as contemplated by G.S. 1-5 . It is not a civil action as defined in G.S. 1-2 . And by G.S. 1-3 “every other remedy is a special proceeding.” Certainly such an inquisition is of a civil nature, though it would seem it is not a special proceeding under G.S. 1-3 . In re Dunn, 239 N.C. 378 , 79 S.E.2d 921, 1954 N.C. LEXIS 377 (1954).

Right to Notice and Opportunity to Be Heard. —

When a party’s lack of mental capacity is asserted and denied, and he has not previously been adjudicated incompetent to manage his affairs, he is entitled to notice and an opportunity to be heard before either a next friend or a guardian ad litem can be appointed for him. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

It is fundamental that one accused of incompetency is entitled to notice of the proceedings and a reasonable opportunity to rebut the allegations of the petition. In re Robinson, 26 N.C. App. 341, 215 S.E.2d 631, 1975 N.C. App. LEXIS 2046 (1975).

Notice to Alleged Incompetent Serves Function of Summons. —

The effect of former section is to provide that the proceeding may be commenced by the filing of the petition, and that the inquisition may be held upon the notice therein provided being served upon the alleged incompetent, thereby dispensing with the necessity of issuing a summons. The notice to an incompetent to appear at a time and place named to present evidence and show cause, if any, why he should not be declared incompetent serves every function of a summons. In re Barker, 210 N.C. 617 , 188 S.E. 205, 1936 N.C. LEXIS 176 (1936).

Presence of Party. —

The person alleged to be incompetent has a right to be present at the inquest, and if this right be denied him, it is good cause for setting aside the inquisition. Bethea v. McLennon, 23 N.C. 523 , 1841 N.C. LEXIS 114 (1841).

Right to Traverse Inquisition. —

From the earliest times the common law and the course of the legislation in common-law states has guarded sedulously the right of persons accused of incompetency of any kind to traverse the inquisition or other proceeding in the nature of one de lunatico inquirendo. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

Conclusiveness of Adjudication. —

An adjudication of insanity is conclusive as to the parties to the proceeding and their privies, but as to others it is evidence of incompetency and raises a mere presumption to that effect which is not conclusive but may be rebutted. Medical College v. Maynard, 236 N.C. 506 , 73 S.E.2d 315, 1952 N.C. LEXIS 597 (1952).

The executed contract of a mentally incompetent person is ordinarily voidable and not void. If, however, the person has been adjudged incompetent from want of understanding to manage his affairs and the court has appointed a guardian for him, he is conclusively presumed insane insofar as parties and privies to the guardianship proceedings are concerned; as to all others, it is presumptive (but rebuttable) proof of the ward’s incapacity. Chesson v. Pilot Life Ins. Co., 268 N.C. 98 , 150 S.E.2d 40, 1966 N.C. LEXIS 1133 (1966).

The test for mental competence to enter into a release is the same as that controlling the running of the statute of limitations, i.e., whether at the time of execution of the release, the party challenging the release had the mental competence to manage his own affairs. Cox v. Jefferson-Pilot Fire & Cas. Co., 80 N.C. App. 122, 341 S.E.2d 608, 1986 N.C. App. LEXIS 2130 , cert. denied, 317 N.C. 702 , 347 S.E.2d 38, 1986 N.C. LEXIS 2478 (1986).

Guardian of a young incompetent adult, appointed by the State, acted under color of State law and was a State actor for purposes of jurisdiction under 42 U.S.C. § 1983 in a suit brought by ward’s next friend seeking appropriate treatment for the ward. Thomas S. v. Morrow, 781 F.2d 367, 1986 U.S. App. LEXIS 21712 (4th Cir.), cert. denied, 476 U.S. 1124, 106 S. Ct. 1992, 90 L. Ed. 2d 673, 1986 U.S. LEXIS 3166 (1986), cert. denied, 479 U.S. 869, 107 S. Ct. 235, 93 L. Ed. 2d 161, 1986 U.S. LEXIS 4118 (1986) (upholding federal district court’s order directing guardian and Secretary of North Carolina Department of Human Resources to furnish specific treatment for the ward, but directing the district court to delete from its order the direction that the guardian perform his duties under State law).

II.Inability to Manage Own Affairs

The word “affairs” encompasses a person’s entire property and business, not just one transaction or one piece of property to which he may have a unique attachment. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

Test of Incompetence to Manage Own Affairs. —

Under former G.S. 35-2 , if a person’s mental condition is such that he is incapable of transacting the ordinary business involved in taking care of his property, if he is incapable of exercising rational judgment and weighing the consequences of his acts upon himself, his family, his property and estate, he is incompetent to manage his affairs. On the other hand, if he understands what is necessarily required for the management of his ordinary business affairs and is able to perform those acts with reasonable continuity, if he comprehends the effect of what he does, and can exercise his own will, he is not lacking in understanding within the meaning of the law, and he cannot be deprived of the control of his litigation or property. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

There is no completely satisfactory definition of the phrase “incompetent from want of understanding to manage his own affairs.” Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

Incompetency to administer one’s property obviously depends upon the general frame and habit of mind, and not upon specific actions, such as may be reflected by eccentricities, prejudices, or the holding of particular beliefs. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

As to the requirement that an adult plaintiff be non compos mentis before the court has jurisdiction to appoint a next friend for him, see Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

More Efficient Management of Property by Another Is Insufficient Ground. —

To authorize the appointment of next friend or guardian ad litem, it is not enough to show that another might manage a man’s property more wisely or efficiently than he himself. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

Mere weakness of mind will not be sufficient to put a person among those who are incompetent to manage their own affairs. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

Eccentricity, like profligacy, may coexist with the ability to manage one’s property. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

III.Appointment of Guardian

Mental incapacity is only cause for appointment of a guardian under this section. Former section does not make physical incapacity alone, however complete, grounds for such appointment. Goodson v. Lehmon, 224 N.C. 616 , 31 S.E.2d 756, 1944 N.C. LEXIS 430 (1944).

Ward Presumed to Lack Capacity after Guardian Appointed. —

Where a person has been adjudged incompetent for want of understanding to manage his own affairs, under former section, and the court has appointed a guardian, and not a trustee, the ward is conclusively presumed to lack mental capacity to manage his own affairs, insofar as parties and privies to the proceeding are concerned; and, while not conclusive as to others, it is presumptive, and the presumption continues unless rebutted in a proper proceeding. Sutton v. Sutton, 222 N.C. 274 , 22 S.E.2d 553, 1942 N.C. LEXIS 80 (1942).

An inquisition is not always a condition precedent for the appointment of a next friend or a guardian ad litem. In an emergency, when it is necessary, pendente lite, to safeguard the property of a person non compos mentis whose incompetency has not been adjudicated, the protection of the court may be invoked in his behalf by one acting as next friend. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

No Substantial Difference between Next Friend and Guardian Ad Litem. —

Although technically a next friend represents a plaintiff and a guardian ad litem represents a defendant, there is no substantial difference between the two. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

The class of persons for whom next friends and guardians ad litem may be appointed are the same. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

Neither a next friend nor a guardian ad litem has authority to receive money or administer the litigant’s property. His powers are coterminous with the beginning and end of the litigation in which he is appointed. Hagins v. Redevelopment Comm'n, 275 N.C. 90 , 165 S.E.2d 490, 1969 N.C. LEXIS 351 (1969).

§ 35A-1211. Service of application, motions, and notices.

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 parties of record, and such other persons as the clerk shall direct.
When the application for appointment of a guardian is joined with a petition for adjudication of incompetence, the application shall be served with and in the same manner as the petition for adjudication of incompetence. When the application is filed subsequent to the petition for adjudication of incompetence, the applicant shall serve the application as provided by G.S. 1A-1 , Rule 5, Rules of Civil Procedure, unless the clerk directs otherwise.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 25.

§ 35A-1212. Hearing before clerk on appointment of guardian.

The clerk shall make such inquiry and receive such evidence as the clerk deems necessary to determine:
1. The nature and extent of the needed guardianship;
2. The assets, liabilities, and needs of the ward; and
3. Who, in the clerk’s discretion, can most suitably serve as the guardian or guardians.If the clerk determines that the nature and extent of the ward’s capacity justifies ordering a limited guardianship, the clerk may do so.
If a current multidisciplinary evaluation is not available and the clerk determines that one is necessary, the clerk, on his own motion or the motion of any party, may order that such an evaluation be performed pursuant to G.S. 35A-1111 . The provisions of that section shall apply to such an order for a multidisciplinary evaluation following an adjudication of incompetence.
The clerk may require a report prepared by a designated agency to evaluate the suitability of a prospective guardian, to include a recommendation as to an appropriate party or parties to serve as guardian, or both, based on the nature and extent of the needed guardianship and the ward’s assets, liabilities, and needs.
If a designated agency has not been named pursuant to G.S. 35A-1111 , the clerk may, at any time he finds that the best interest of the ward would be served thereby, name a designated agency.

History. 1987, c. 550, s. 1; 2003-236, s. 1.

§ 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 on the powers to be given to the guardian. If both parents make such recommendations, the will with the latest date shall, in the absence of other relevant factors, prevail. Such recommendation shall be a strong guide for the clerk in appointing a guardian, but the clerk is not bound by the recommendation if the clerk finds that a different appointment is in the incompetent adult’s best interest. If the will specifically so directs, a guardian appointed pursuant to such recommendation may be permitted to qualify and serve without giving bond, unless the clerk finds as a fact that the interest of the incompetent adult would be best served by requiring the guardian to give bond.

History. 2005-333, s. 1.

§ 35A-1213. Qualifications of guardians.

The clerk may appoint as guardian an adult individual, a corporation, or a disinterested public agent. The applicant may submit to the clerk the name or names of potential guardians, and the clerk may consider the recommendations of the next of kin or other persons.
A nonresident of the State of North Carolina, to be appointed as general guardian, guardian of the person, or guardian of the estate of a North Carolina resident, must indicate in writing his willingness to submit to the jurisdiction of the North Carolina courts in matters relating to the guardianship and must appoint a resident agent to accept service of process for the guardian in all actions or proceedings with respect to the guardianship. Such appointment must be approved by and filed with the clerk, and any agent so appointed must notify the clerk of any change in the agent’s address or legal residence. The clerk shall require a nonresident guardian of the estate or a nonresident general guardian to post a bond or other security for the faithful performance of the guardian’s duties. The clerk may require a nonresident guardian of the person to post a bond or other security for the faithful performance of the guardian’s duties.
A corporation may be appointed as guardian only if it is authorized by its charter to serve as a guardian or in similar fiduciary capacities. A corporation shall meet the requirements outlined in Chapters 55 and 55D of the General Statutes. A corporation will provide a written copy of its charter to the clerk of superior court. A corporation contracting with a public agency to serve as guardian is required to attend guardianship training and provide verification of attendance to the contracting agency. A corporation shall not be appointed as guardian for any individual to whom it provides mental health, developmental disabilities, or substance abuse services for compensation as part of a contractual or other arrangement with a local management entity (LME), including an LME that has been approved to operate the 1915(b)/(c) Medicaid Waiver.
A disinterested public agent who is appointed by the clerk to serve as guardian is authorized and required to do so; provided, if at the time of the appointment or any time subsequent thereto the disinterested public agent believes that his role or the role of his agency in relation to the ward is such that his service as guardian would constitute a conflict of interest, or if he knows of any other reason that his service as guardian may not be in the ward’s best interest, he shall bring such matter to the attention of the clerk and seek the appointment of a different guardian. A disinterested public agent who is appointed as guardian shall serve in that capacity by virtue of his office or employment, which shall be identified in the clerk’s order and in the letters of appointment. When the disinterested public agent’s office or employment terminates, his successor in office or employment, or his immediate supervisor if there is no successor, shall succeed him as guardian without further proceedings unless the clerk orders otherwise.
Notwithstanding any other provision of this section, an employee of a treatment facility, as defined in G.S. 35A-1101(16) , may not serve as guardian for a ward who is an inpatient in or resident of the facility in which the employee works; provided, this subsection shall not apply to or affect the validity of any appointment of a guardian that occurred before October 1, 1987.
An individual who contracts with or is employed by an entity that contracts with a local management entity (LME) for the delivery of mental health, developmental disabilities, and substance abuse services may not serve as a guardian for a ward for whom the individual or entity is providing these services, unless the individual is one of the following:
1. A parent of that ward.
2. A member of the ward’s immediate family, a licensed family foster care provider, or a licensed therapeutic foster care provider who is under contract with a local management entity (LME) for the delivery of mental health, developmental disabilities, and substance abuse services and is serving as a guardian as of January 1, 2013. For the purposes of this subsection, the term “immediate family” is defined as a spouse, child, sibling, parent, grandparent, or grandchild. The term also includes stepparents, stepchildren, stepsiblings, and adoptive relationships.
3. A biologically unrelated individual who was serving on March 1, 2013, as a guardian without compensation for guardianship services.

History. 1987, c. 550, s. 1; 2004-203, s. 31(a); 2012-151, s. 12(c); 2013-258, ss. 1, 2.

Editor’s Note.

Session Laws 2012-151, s. 12(e), provides: “In order to achieve continuity of care and services, any successor guardian shall make diligent efforts to continue existing contracts entered into under the authority of G.S. 122C-122 where consistent with the best interest of the ward as required by Chapter 35A of the General Statutes.”

Effect of Amendments.

Session Laws 2004-203, s. 31(a), effective August 17, 2004, in subsection (b), deleted the former first sentence which read: “An individual appointed as general guardian or guardian of the estate must be a resident of the State of North Carolina,” inserted “general guardian” following “to be appointed as,” substituted “person, or guardian of the estate” for “person,” substituted “shall” for “may” preceding “require a nonresident,” inserted “of the estate or a nonresident general guardian,” and added the last sentence.

Session Laws 2012-151, s. 12(c), effective July 12, 2012, added the last three sentences in subsection (c), and added subsection (f).

Session Laws 2013-258, ss. 1 and 2, effective July 10, 2013, added the last sentence in subsection (c); redesignated former subsection (f) as present subsection (f) and subdivisions (f)(1) and (f)(2); substituted “one of the following” for “a” at the end of the introductory al language of subsection (f); in subdivision (f)(1), added “A” at the beginning and deleted “The prohibition provided in this subsection shall not apply to a” at the end; in subdivision (f)(2), added “A” at the beginning, and “a licensed family foster care provider, or a licensed therapeutic foster care provider” in the first sentence; and added subdivision (f)(3).

CASE NOTES

The court correctly dismissed the plaintiff’s challenge to this section due to a lack of standing where he failed to allege that the court would have named him his grandmother’s guardian in the absence of the residency requirements of this section. Jones v. Jones, 2000 U.S. App. LEXIS 12271 (4th Cir. June 5, 2000).

§ 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 a disinterested public agent. No public agent shall be appointed guardian until diligent efforts have been made to find an appropriate individual or corporation to serve as guardian, but in every instance the clerk shall base the appointment of a guardian or guardians on the best interest of the ward.

History. 1987, c. 550, s. 1; 2005-333, s. 2.

Effect of Amendments.

Session Laws 2005-333, s. 2, effective August 26, 2005, inserted “an individual recommended under G.S. 35A-1212.1 .”

§ 35A-1215. Clerk’s order; issuance of letters of appointment.

When appointing a guardian, the clerk shall enter an order setting forth:
1. The nature of the guardianship or guardianships to be created and the name of the person or entity appointed to fill each guardianship; and
2. The powers and duties of the guardian or guardians, which shall include, unless the clerk orders otherwise, (i) with respect to a guardian of the person and general guardian, the powers and duties provided under G.S. 35A, Article 8, and (ii) with respect to a guardian of the estate and general guardian, the powers, and duties provided under G.S. 35A, Article 9 and Subchapter III; and
3. The identity of the designated agency if there is one.
If the clerk orders a limited guardianship as authorized by G.S. 35A-1212(a) , the clerk may order that the ward retain certain legal rights and privileges to which the ward was entitled before the ward was adjudged incompetent. Any order of limited guardianship shall include findings as to the nature and extent of the ward’s incompetence as it relates to the ward’s need for a guardian or guardians.
The clerk shall issue the guardian or guardians letters of appointment as provided in G.S. 35A-1206 .

History. 1987, c. 550, s. 1; 2003-236, s. 2.

§ 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, among other things, that disinterested public agents shall undertake or have received training concerning the powers and responsibilities of guardians.

History. 1987, c. 550, s. 1; 1997-443, s. 11A.15.

§ 35A-1217. Appointment of guardian ad litem for incompetent ward.

The clerk shall appoint a guardian ad litem to represent a ward in a proceeding under this Subchapter if the ward has been adjudicated incompetent under Subchapter I and the clerk determines that the ward’s interests are not adequately represented. Appointment and discharge of the guardian ad litem shall be in accordance with rules adopted by the Office of Indigent Defense Services. Nothing herein shall affect the ward’s right to retain counsel of his or her own choice.

History. 2009-387, s. 2.

CASE NOTES

Appointment in Bankruptcy Cases. —

Bankruptcy court continued a hearing on a trustee’s motion to dismiss a debtor’s Chapter 13 bankruptcy case to give the debtor time to apply for a mental health evaluation and a person who was described in the debtor’s petition as his “next friend and wife” time to support the validity of her filing and to file a motion for appointment as the debtor’s guardian ad litem; although 11 U.S.C.S. § 109 and Fed. R. Bankr. P. 1004.1 allowed a debtor who claimed he was incompetent to file bankruptcy through a next friend, both North Carolina law and Rule 1004.1 required the person who filed the debtor’s petition to establish the debtor’s incompetency and obtain an order appointing that person to serve as the debtor’s guardian ad litem. In re McGlohon, 2016 Bankr. LEXIS 424 (Bankr. E.D.N.C. Feb. 10, 2016).

§§ 35A-1218 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 social services director in the county in which the minor resides or is domiciled shall be the guardian of the person of the minor until the appointment of a general guardian or guardian of the person for the minor under this Subchapter or the entry of an order by a court of competent jurisdiction awarding custody of the minor or appointing a general guardian or guardian of the person for the minor.

History. 1987, c. 550, s. 1.

§ 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 of the estate for any minor or for the appointment of a guardian of the person or general guardian for any minor who has no natural guardian by filing an application with the clerk. The application shall set forth, to the extent known:

The minor’s name, date of birth, address, and county of residence;
The names and address of the minor’s parents, if living, and of other persons known to have an interest in the application for appointment of a guardian; the name of and date of death of the minor’s deceased parent or parents;
The applicant’s name, address, county of residence, relationship if any to the minor, and interest in the proceeding;
If a guardian has been appointed for the minor or custody of the minor has been awarded, a statement of the facts relating thereto and a copy of any guardianship or custody order, if available;
A general statement of the minor’s assets and liabilities with an estimate of the value of any property, including any income and receivables to which he is entitled;
A statement of the reason or reasons that the appointment of a guardian is sought; whether the applicant seeks the appointment of a guardian of the person, a guardian of the estate, or a general guardian; and whom the applicant recommends or seeks to have appointed as such guardian or guardians; and
Any other information that will assist the clerk in determining the need for a guardian or in appointing a guardian.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 24; 1997-443, s. 11A.16.

CASE NOTES

Related Custody Action Moot. —

When a stepmother was granted ex parte temporary custody of orphaned stepchildren, an aunt’s subsequent guardianship petition made the custody action moot because (1) in the guardianship case, the clerk properly exercised jurisdiction, as the children had no natural guardian, and the clerk’s jurisdiction was not divested by the ex parte temporary custody order, since the clerk considered other courts’ custody awards, so the clerk had jurisdiction to appoint the children’s general guardians, an incident of which was physical custody, and (2) any guardianship modification, including custody modification, required filing a motion with the clerk instead of a district court custody action. Corbett v. Lynch, 251 N.C. App. 40, 795 S.E.2d 564, 2016 N.C. App. LEXIS 1315 (2016).

§ 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, and legal custodian of the minor who is not an applicant, and on any other person the clerk may direct, including the minor. Service shall be provided by G.S. 1A-1 , Rule 4, Rules of Civil Procedure, unless the clerk directs otherwise. When service is made by the sheriff, the sheriff shall make such service without demanding his fees in advance. Parties may waive their right to notice of the hearing and the clerk may proceed to consider the application upon determining that all necessary parties are before the court and agree to have the application considered.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 19.

§ 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. If the court determines that a guardian or guardians are required, the court shall receive evidence necessary to determine the minor’s assets, liabilities, and needs, and who the guardian or guardians shall be. The hearing may be informal and the clerk may consider whatever testimony, written reports, affidavits, documents, or other evidence the clerk finds necessary to determine the minor’s best interest.

History. 1987, c. 550, s. 1.

CASE NOTES

Related Custody Action Moot. —

§ 35A-1224. Criteria for appointment of guardians.

The clerk may appoint a guardian of the estate for any minor. The clerk may appoint a guardian of the person or a general guardian only for a minor who has no natural guardian.
The clerk may appoint as guardian of the person or general guardian only an adult individual whether or not that individual is a resident of the State of North Carolina.
The clerk may appoint as guardian of the estate an adult individual whether or not that individual is a resident of the State of North Carolina or a corporation that is authorized by its charter to serve as a guardian or in similar fiduciary capacities.
If the minor’s parent or parents have made a testamentary recommendation pursuant to G.S. 35A-1225 for the appointment of a guardian, the clerk shall give substantial weight to such recommendation; provided, such recommendation may not affect the rights of a surviving parent who has not willfully abandoned the minor, and the clerk shall in every instance base the appointment of a guardian or guardians on the minor’s best interest.
Notwithstanding any other provision of this section, an employee of a treatment facility, as defined in G.S. 35A-1101(16) , may not serve as guardian for a ward who is an inpatient in or resident of the facility in which the employee works; provided, this subsection shall not apply to or affect the validity of any appointment of a guardian that occurred before October 1, 1987.

History. 1987, c. 550, s. 1; 1989 c. 473, s. 1.

CASE NOTES

Appointment of Person to Receive Minor’s Death Benefits. —

Clerk of Superior Court may not appoint a “general guardian” for a minor if a natural guardian, such as a biological mother, exists; however, clerk of Superior Court may appoint “some other person” to receive death benefits on behalf of minor. Valles de Portillo v. D.H. Griffin Wrecking Co., 134 N.C. App. 714, 518 S.E.2d 555, 1999 N.C. App. LEXIS 904 (1999).

§ 35A-1225. Testamentary recommendation; guardian for incompetent minor.

Parents are presumed to know the best interest of their children. Any parent may by last will and testament recommend a guardian for any of his or her minor children, whether born at the parent’s death or en ventre sa mere, for such time as the child remains under 18 years of age, unmarried, and unemancipated, or for any less time. Such will may be made without regard to whether the testator is an adult or a minor. If both parents make such recommendations, the will with the latest date shall, in the absence of other relevant factors, prevail. In the absence of a surviving parent, such recommendation shall be a strong guide for the clerk in appointing a guardian, but the clerk is not bound by the recommendation if the clerk finds that a different appointment is in the minor’s best interest. If the will specifically so directs, a guardian appointed pursuant to such recommendation may be permitted to qualify and serve without giving bond, unless the clerk finds as a fact that the interest of the minor would be best served by requiring the guardian to give bond.
Any person authorized by law to recommend a guardian for a minor by his last will and testament or other writing may direct that the guardian appointed for his incompetent child shall petition the clerk during the six months before the child reaches majority for an adjudication of incompetence and appointment of a guardian under the provisions of this Chapter. If so directed, the guardian shall timely file such a petition unless the minor is no longer incompetent. Notwithstanding the absence of such provision in a will or other writing, the guardian of an incompetent child, or any other person, may file such petition during the six months before the minor reaches majority or thereafter.

History. 1987, c. 550, s. 1.

Cross References.

As to adoption of children, see G.S. 48-1 et seq.

As to action or proceeding for custody of minor child, see G.S. 50-13.1 et seq.

Legal Periodicals.

For survey of 1977 law on domestic relations, see 56 N.C.L. Rev. 1045 (1978).

CASE NOTES

Editor’s Note. —

Most of the cases cited below were decided under former G.S. 33-2 and prior law.

Section Controls Appointment. —

A father cannot appoint a guardian for his children, nor impose on anyone the duties and obligations of that office, except pursuant to former section. Peyton v. Smith, 22 N.C. 325 , 1839 N.C. LEXIS 25 (1839). See Long v. Rhymes, 6 N.C. 122 , 1812 N.C. LEXIS 8 (1812).

Applies Only to Testator’s Children. —

A testator cannot appoint a testamentary guardian except for his own children. Camp v. Pittman, 90 N.C. 615 , 1884 N.C. LEXIS 288 (1884).

Appointment by Will. —

A last will and testament cannot operate to appoint a guardian for an adult child regardless of the disability. In re Efird, 114 N.C. App. 638, 442 S.E.2d 381, 1994 N.C. App. LEXIS 435 (1994).

Former section does not authorize a grandfather to appoint a guardian for his grandchildren. Williamson v. Jordon, 45 N.C. 46 , 1852 N.C. LEXIS 8 (1852). See Johnson v. Salsbury, 232 N.C. 432 , 61 S.E.2d 327, 1950 N.C. LEXIS 547 (1950).

Bequest to Son as Trustee for Grandchildren. —

Testatrix bequeathed certain property to her grandchildren with subsequent provisions that it was her will and desire that her son be appointed their guardian and that the guardian should hold and manage the property for the grandchildren with power to sell, convey or exchange the securities. It was held that since testatrix could not appoint a testamentary guardian for her grandchildren the provisions will be interpreted as bequeathing the property to testatrix’ son as trustee for testatrix’ grandchildren, in order that each provision of the instrument be given effect consistent with testatrix’ intention. Johnson v. Salsbury, 232 N.C. 432 , 61 S.E.2d 327, 1950 N.C. LEXIS 547 (1950).

Interpretation of Will. —

Where it can clearly be collected from the will of a father that certain persons are thereby appointed to have the custody of the persons and the estate of his children, until they arrive at age, such an appointment will be held to constitute them guardians, as though the appropriate term had been used. Peyton v. Smith, 22 N.C. 325 , 1839 N.C. LEXIS 25 (1839).

Rights of Both Parents Are Recognized. —

In former sections and other statutes, the legislature has recognized the human as well as the legal relation between parent and child, the paramount and the subordinate, the present and the inchoate, rights of the father and the mother, and has wisely provided that both the parents shall have adequate opportunity to be heard and, except in rare cases, shall give their consent before the legal relation is severed or the domestic circle is broken. Truelove v. Parker, 191 N.C. 430 , 132 S.E. 295, 1926 N.C. LEXIS 95 (1926).

Father Not Regarded as Wrongdoer When He Acts in Good Faith with Child’s Money. —

Since under former section the father is natural guardian for his minor children he should not be regarded as a trespasser or a wrongdoer when he acts in good faith with his child’s money and makes purchases for its benefit. Lifsey v. Bullock, 11 F. Supp. 728, 1935 U.S. Dist. LEXIS 1451 (D.N.C. 1935).

§ 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 may set forth:

Findings as to the minor’s circumstances, assets, and liabilities as they relate to his needs for a guardian or guardians; and
Whether there shall be one or more guardians, his or their identity, and if more than one, who shall be guardian of the person and who shall be guardian of the estate. The clerk shall issue the guardian or guardians letters of appointment as provided in G.S. 35A-1206 .

History. 1987, c. 550, s. 1.

§ 35A-1227. Funds owed to minors.

Certain insurance proceeds or other funds to which a minor is entitled may be paid to and administered by the public guardian or the clerk as provided in G.S. 7A-111 .
A devise of personal property to a minor may be distributed to the minor’s parent or guardian with the approval of the clerk as provided in G.S. 28A-22-7 .
A personal representative or collector who holds property due a minor without a guardian may deliver the property to the clerk as provided in G.S. 28A-23-2 .
Inter vivos or testamentary transfers to minors may be made and administered according to the North Carolina Uniform Transfers to Minors Act, Chapter 33A of the General Statutes.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 23; 2011-284, s. 37.

Effect of Amendments.

Session Laws 2011-284, s. 37, effective June 24, 2011, deleted “or legacy” following “devise” in subsection (b).

§ 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 this State who is his child or other minor dependent as provided by the Wartime Allowances to Service Men’s Dependents Act or any other act of Congress, the clerk in the county of the minor’s residence may act as temporary guardian, or appoint some suitable person to act as temporary guardian, of the person’s minor dependent for purposes of receiving and disbursing allotments and allowance funds for the benefit of the minor dependent, when:

The other parent of the child or other minor dependent, or other person designated in the allowance or allotment to receive and disburse such moneys for the benefit of the minor dependent, dies or becomes mentally incompetent; and
The person serving in the Armed Forces of the United States is reported as missing in action or as a prisoner of war and is unable to designate another person to receive and disburse the allotment or allowance to the minor dependent.

History. 1987, c. 550, s. 1; 2011-183, s. 28.

Effect of Amendments.

Session Laws 2011-183, s. 28, effective June 20, 2011, near the beginning of the introductory paragraph and in subdivision (2), substituted “Armed Forces” for “armed forces.”

§ 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 property until he has given sufficient surety, approved by the clerk, to account for and apply the same under the direction of the court, provided that if the guardian is a nonresident of this State and the value of the property received exceeds one thousand dollars ($1,000) the surety shall be a bond under G.S. 35A-1231 (a) executed by a duly authorized surety company, or secured by cash in an amount equal to the amount of the bond or by a mortgage executed under Chapter 109 of the General Statutes on real estate located in the county, the value of which, excluding all prior liens and encumbrances, shall be at least one and one-fourth times the amount of the bond; and further provided that the nonresident shall appoint a resident agent to accept service of process in all actions and proceedings with respect to the guardianship. The clerk shall not require a guardian of the person who is a resident of North Carolina to post a bond; the clerk may require a nonresident guardian of the person to post a bond or other security for the faithful performance of the guardian’s duties.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 2; 2005-333, s. 3.

Cross References.

As to giving bond in surety company, see G.S. 58-73-5 .

As to giving mortgage in lieu of bond, see G.S. 58-74-1 et seq.

Editor’s Note.

Chapter 109 of the General Statutes, referred to in the section above, has been recodified as Articles 72 through 77 of Chapter 58 (G.S. 58-72-1 et seq. through G.S. 58-77-1 et seq.) under the authority of Session Laws 1987, c. 752, s. 9 and Session Laws 1987 (Reg. Sess., 1988), c. 975, s. 34.

Effect of Amendments.

Session Laws 2005-333, s. 3, effective August 26, 2005, inserted “G.S. 35A-1212.1 and” in the first sentence.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former law.

Presumption of Giving of Bond. —

When the fact that a guardian was appointed is admitted, a presumption arises that a guardian bond was given, since such a bond is a prerequisite to the appointment. Kello v. Maget, 18 N.C. 414 , 1835 N.C. LEXIS 56 (1835).

When Denial of Guardianship Not Permissible. —

Where there is evidence that one had been appointed and had acted as guardian, neither he nor his administrators can deny that he was guardian on the ground that he had not given bond. Latham v. Wilcox, 99 N.C. 367 , 6 S.E. 711, 1888 N.C. LEXIS 304 (1888).

The surety on a guardianship bond is estopped to deny the validity of the appointment of a guardian when the bond signed by the surety recites that the guardian has been duly appointed. Phipps v. Royal Indem. Co., 201 N.C. 561 , 161 S.E. 69, 1931 N.C. LEXIS 36 (1931).

Omission by the clerk to take the bond required on the appointment of a guardian does not destroy the efficacy of the appointment. Howerton v. Sexton, 104 N.C. 75 , 10 S.E. 148, 1889 N.C. LEXIS 153 (1889).

Liability on Bond. —

A guardian and his bondsmen are liable for all moneys due his wards which he has collected or ought to have collected. Loftin v. Cobb, 126 N.C. 58 , 35 S.E. 230, 1900 N.C. LEXIS 183 (1900).

Where the administrator of a former guardian himself becomes guardian, he and his guardian bondsmen become liable for any balance due from the solvent estate of the former guardian. Loftin v. Cobb, 126 N.C. 58 , 35 S.E. 230, 1900 N.C. LEXIS 183 (1900).

§ 35A-1231. Terms and conditions of bond; increase on sale of realty or personal property.

Before issuing letters of appointment to a general guardian or guardian of the estate the clerk shall require the guardian to give a bond payable to the State. The clerk shall determine the value of all the ward’s personal property and the rents and profits of the ward’s real estate by examining, under oath, the applicant for guardianship or any other person or persons. The penalty in the bond shall be set as follows:
1. Where the bond is executed by personal sureties, the penalty must be at least double the value so determined by the clerk;
2. Where the bond is executed by a duly authorized surety company, the penalty may be fixed at not less than one and one-fourth times the value so determined by the clerk;
3. Provided, however, the clerk may accept bond in estates where the value determined by the clerk exceeds the sum of one hundred thousand dollars ($100,000), in a sum equal to one hundred and ten percent (110%) of the determined value.
  The bond must be secured with two or more sufficient sureties, jointly and severally bound, and must be acknowledged before and approved by the clerk. The bond must be conditioned on the guardian’s faithfully executing the trust reposed in him as such and obeying all lawful orders of the clerk or judge relating to the guardianship of the estate committed to him. The bond must be recorded in the office of the clerk appointing the guardian, except, if the guardianship is transferred to a different county, it must be recorded in the office of the clerk in the county where the guardianship is docketed.
If the court orders a sale of the ward’s real property, or if the guardian expects or offers to sell personal property that he knows or has reason to know has a value greater than the value used in determining the amount of the bond posted, the guardian shall, before receiving the proceeds of the sale, furnish bond or increase his existing bond to cover the proceeds if real estate is sold, or to cover the increased value if personal property is sold. The bond, or the increase in the existing bond, shall be twice the amount of the proceeds of any real property sold, or of the increased value of any personal property sold, except where the bond is executed by a duly authorized surety company, in which case the penalty of the bond need not exceed one and one-fourth times the amount of the real property sold or the increased value of the personal property sold.

History. 1987, c. 550, s. 1; 1989, 473, s. 9.

Cross References.

As to statute of limitations on bond, see G.S. 1-50 , 1-52.

As to reduction of penalty of bond, see G.S. 35A-1233 .

As to action on bond, see G.S. 35A-1234 .

As to renewal of bond, see G.S. 35A-1236 .

As to liability of clerk for taking insufficient bond, see G.S. 35A-1238 .

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 33-13 and prior law.

Former section contemplates that the bond shall be signed and acknowledged by the guardian as principal, as well as by the sureties. Cheshire v. Howard, 207 N.C. 566 , 178 S.E. 348, 1935 N.C. LEXIS 206 (1935).

Acceptance without Guardian’s Signature Is an Irregularity. —

The acceptance and approval of the bond by the clerk of the superior court without the signature of the guardian as principal is an irregularity, but such irregularity does not render the bond void either as to the principal or as to his sureties. Cheshire v. Howard, 207 N.C. 566 , 178 S.E. 348, 1935 N.C. LEXIS 206 (1935).

A guardian’s bond is not strictly a record of the court, although the fact that it was made and accepted may be. An action may therefore be brought on the bond after its loss or destruction, without any previous application to the court to restore it as a record. Harrell v. Hare, 70 N.C. 658 , 1874 N.C. LEXIS 303 (1874).

Failure to Insert Penalty. —

A guardian’s bond is not binding on the sureties thereto where it did not state the amount of the penalty at the time it was signed, and they did not afterwards authorize anyone to insert the amount. Rollins v. Ebbs, 137 N.C. 355 , 49 S.E. 341, 1904 N.C. LEXIS 369 (1904).

Failure to Collect Money. —

Where a guardian ought to receive a certain amount of money and does not, but takes something else, his own bond for instance, in place of the money, he and his sureties are liable. State ex rel. Avent v. Womack, 72 N.C. 397 , 1875 N.C. LEXIS 239 (1875).

Bank Intermingling Trust Funds. —

A bank, as guardian, in not investing the funds of its ward, but intermingling them with other funds of the bank, was faithless to the trust reposed in it; and, under the terms of this action, its bondsman must suffer the loss for such faithlessness. State ex rel. Roebuck v. National Sur. Co., 200 N.C. 196 , 156 S.E. 531, 1931 N.C. LEXIS 280 (1931).

Responsible for Laches. —

A guardian is responsible on his bond for any loss resulting from his laches in failing to sue. Cross v. Craven, 120 N.C. 331 , 26 S.E. 940, 1897 N.C. LEXIS 66 (1897).

Limit of Liability for Realty. —

The guardian’s bond is not responsible in any way for the realty beyond the rents and profits. Cross v. Craven, 120 N.C. 331 , 26 S.E. 940, 1897 N.C. LEXIS 66 (1897).

Liability on Note for Ward’s Board. —

The sureties on a guardian’s bond are not responsible for the nonpayment of a note given by the guardian, and signed by him as guardian, for the board and tuition of his ward. McKinnon v. McKinnon, 81 N.C. 201 , 1879 N.C. LEXIS 165 (1879).

Surety as a Party in Interest. —

When a guardian fails to “faithfully execute the trust reposed in him as such,” upon which his bond is conditioned, the surety thereon is subjected to liability, and as a party in interest is entitled to have the wrong remedied. Maryland Cas. Co. v. Lawing, 223 N.C. 8 , 25 S.E.2d 183, 1943 N.C. LEXIS 192 (1943).

§ 35A-1232. Exclusion of deposited money in computing amount of bond.

When it appears that the ward’s estate includes money that has been or will be deposited in an account with a financial institution upon condition that the money will not be withdrawn except on authorization of the court, the court may, in its discretion, order that the money be so deposited or invested and exclude such deposited money from the computation of the amount of the bond or reduce the amount of the bond in respect of such money to such an amount as it may deem reasonable.
The applicant for letters of guardianship, or a general guardian or guardian of the estate, may deliver to any such financial institution any such money in the applicant’s or the guardian’s possession or may allow such financial institution to retain any such money already deposited or invested with it; in either event, the applicant or guardian shall secure and file with the court a written receipt including the agreement of the financial institution, duly acknowledged by an authorized officer of the financial institution, that the money shall not be allowed to be withdrawn except on authorization of the court. In so receiving and retaining such money from an applicant for letters of guardianship, the financial institution shall be protected to the same extent as though it had received the same from a general guardian or a guardian of the estate.
The term “account with a financial institution” as used in this section means any account in a bank, savings and loan association, credit union, trust company, or registered securities broker or dealer.
The term “money” as used in this section means the principal of the ward’s estate and does not include the income earned by the principal, which may be withdrawn without any authorization of the court.

History. 1987, c. 550, s. 1; 2009-309, s. 1.

Effect of Amendments.

Session Laws 2009-309, s. 1, effective October 1, 2009, in subsection (a), substituted “in an account with a financial institution” for “in a bank in this State or invested in an account in an insured savings and loan association” and deleted “or securities” preceding “will not” near the middle; and rewrote subsections (b) and (c).

§ 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 support and maintenance of the ward or the ward and his dependents or any lawful cause, and when the personal assets and income of the estate from all sources in the hands of the guardian have been diminished, the penalty of the guardian’s bond may be reduced in the discretion of the clerk to an amount not less than the amount that would be required if the guardian were first qualifying to administer the personal assets and income.

History. 1987, c. 550, s. 1.

§ 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.

History. 1987, c. 550, s. 1.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former law.

Jurisdiction of Action. —

The clerk has no jurisdiction of a suit on a guardian’s bond. Such suit must be brought in the superior court. Rowland v. Thompson, 65 N.C. 110 , 1871 N.C. LEXIS 34 (1871).

Action in Name of State. —

An action on a guardian’s bond should be in the name of the State, for the benefit of the plaintiff, and not in the name of the plaintiff. Carmichael v. Moore, 88 N.C. 29 , 1883 N.C. LEXIS 12 (1883); Williams v. McNair, 98 N.C. 332 , 4 S.E. 131, 1887 N.C. LEXIS 278 (1887); Norman v. Walker, 101 N.C. 24 , 7 S.E. 468, 1888 N.C. LEXIS 7 (1888).

Proper Relator. —

When the share of an infant in an estate in the hands of his guardian is assigned, the assignee, and not the infant, is the proper relator in an action on the guardian’s bond. State ex rel. Petty v. Rousseau, 94 N.C. 355 , 1886 N.C. LEXIS 63 (1886).

A creditor of a guardian is not the proper relator in an action upon his bond. McKinnon v. McKinnon, 81 N.C. 201 , 1879 N.C. LEXIS 165 (1879).

Unnecessary Parties. —

In an action against the surety on a guardian’s bond, when the guardian has defaulted and his whereabouts is unknown, and the defendant is the sole surety, and claims that the guardian, who was assistant clerk of the superior court, had given to the clerk a bond for the faithful performance of his duties as assistant clerk, neither the clerk nor the bonding company on the assistant clerk’s bond is a necessary or proper party to said action. Phipps v. Royal Indem. Co., 201 N.C. 561 , 161 S.E. 69, 1931 N.C. LEXIS 36 (1931).

Condition of Bond Set Out in Complaint. —

In an action on a guardian’s bond, it is necessary that conditions of the bond which are alleged to have been broken should be set forth in the complaint. McKinnon v. McKinnon, 81 N.C. 201 , 1879 N.C. LEXIS 165 (1879).

Bond Must Be Proved. —

A guardian’s bond is not a record, and, before it can be read in evidence in any case, it must be proved like all other bonds. Butler v. Durham, 38 N.C. 589 , 1845 N.C. LEXIS 198 (1845).

Evidence of a balance in the hands of a guardian as shown of his annual account was admissible against a surety under the Laws of 1884. Loftin v. Cobb, 126 N.C. 58 , 35 S.E. 230, 1900 N.C. LEXIS 183 (1900).

Defenses. —

The same defense which might be made to an action at law or suit in equity, brought in the name of the ward himself against the guardian, is good in an action brought on the guardian’s bond. State ex rel. Clark v. Cordon, 30 N.C. 179 , 1847 N.C. LEXIS 157 (1847).

Defenses — Settlement. —

Where in a suit on a guardian’s bond it appeared that the account between the guardian and the ward had been settled, and that the guardian gave his own bond to the ward, which was received by the latter in satisfaction of the balance due, and he then gave his guardian a receipt, this was a sufficient defense to the suit on the bond. State ex rel. Clark v. Cordon, 30 N.C. 179 , 1847 N.C. LEXIS 157 (1847).

A full settlement of a suit brought by a ward on a guardian’s bond, made after the ward becomes of age, in the presence of the ward’s mother, and by the advice of her counsel, and a final judgment thereon, is a bar to a subsequent action on the bond. State ex rel. Dean v. Ragsdale, 80 N.C. 215 , 1879 N.C. LEXIS 57 (1879).

An action by the ward against the sureties on the bond of the guardian is barred after three years from the time the ward becomes 21 years old if the guardian makes no final settlement, and within six years if the guardian makes a final settlement. Self v. Shugart, 135 N.C. 185 , 47 S.E. 484, 1904 N.C. LEXIS 22 (1904).

Amount of Recovery. —

In an action upon a guardian’s bond the recovery against either the principal or the surety cannot exceed the penalty thereof, but should be for the penal sum of the bond, and to be discharged on payment of the damages sustained. Anthony v. Estes, 101 N.C. 541 , 8 S.E. 347, 1888 N.C. LEXIS 92 (1888).

Amount of Recovery — Measure of Damages. —

The measure of damages in an action upon a guardian’s bond for a failure to perform any duty required of him is the amount of the principal received, with compound interest at 6% until the ward arrives at full age. Topping v. Windley, 99 N.C. 4 , 5 S.E. 14, 1888 N.C. LEXIS 233 (1888).

§ 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 one bond only in such case, upon which each of the wards or their heirs or personal representatives may have a separate action.

History. 1987, c. 550, s. 1.

§ 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 before the clerk every three years during the continuance of the guardianship. The clerk shall issue a citation against every such guardian failing to renew his bond, requiring the guardian to renew the bond within 20 days after service of the citation. On return of the citation duly served and failure of the guardian to comply, the clerk shall remove the guardian and appoint a successor. This section shall not apply to a guardian whose bond is executed by a duly authorized surety company.

History. 1987, c. 550, s. 1.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former law.

An ordinary guardian has no fixed term of office. While the former statute requires a renewal of the bond every three years there is no requirement for a new appointment. Thornton v. Barbour, 204 N.C. 583 , 169 S.E. 153, 1933 N.C. LEXIS 202 (1933).

Liability for Failure to Enforce Renewal. —

A clerk and his sureties are not liable upon his official bond for his failure to issue a citation requiring a guardian to renew his bond. State ex rel. Jones v. Briggs, 46 N.C. 364 , 1854 N.C. LEXIS 106 (1854); Sullivan v. Lowe, 64 N.C. 500 , 1870 N.C. LEXIS 157 (1870).

§ 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 where the guardianship is docketed, setting forth the circumstances of his case and demanding relief. The guardian shall have 10 days after service of the motion to answer the motion. If, upon the hearing, the clerk deems the surety entitled to relief, the clerk may order the guardian to give a new bond or to indemnify the surety against apprehended loss, or may remove the guardian from his trust. If the guardian fails to give a new bond or security to indemnify within a reasonable time when required to do so, the clerk must enter a peremptory order for his removal, and his authority as guardian shall cease.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 20.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 33-17 and prior law.

A surety is not discharged from liability by the guardian giving a new bond with other sureties. Jones v. Blanton, 41 N.C. 115 , 1849 N.C. LEXIS 186 (1849).

New Bond Is Additional Security. —

When, under former section, new sureties are ordered to be given, the obligation of the bond given by the new sureties extends to the entire guardianship, retrospective as well as prospective. Such a bond is at least an additional and cumulative security for the ward. Bell's Adm'r v. Jasper, 37 N.C. 597 , 1843 N.C. LEXIS 173 (1843).

And where a guardian gives several successive bonds, the sureties on each stand in the relation of cosureties to the sureties on every other bond; the only qualification to the rule being that the sureties are bound to contribution only according to the amount of the penalty of the bond in which each class is bound. Jones v. Hays, 38 N.C. 502 , 1845 N.C. LEXIS 185 (1845); Thornton v. Barbour, 204 N.C. 583 , 169 S.E. 153, 1933 N.C. LEXIS 202 (1933).

Where Counter-Security Given. —

Where the sureties of a guardian obtained an order for counter-security, and at that time the guardian owed his ward, and never afterwards returned an account nor made a payment, no presumption of satisfaction at that or any subsequent time arose from the fact that he was then able to pay the sum he owed; and the sureties on the first bond were liable for it, though the order for counter-security expressly released them. Foye v. Bell, 18 N.C. 475 , 1836 N.C. LEXIS 9 (1836).

The clerk is not empowered by any express statute to release sureties, upon bonds approved by him, especially at a time when the principal is in default. Former section provides a remedy for dissatisfied sureties upon guardian bonds, but release is not one of the remedies therein contemplated. Thornton v. Barbour, 204 N.C. 583 , 169 S.E. 153, 1933 N.C. LEXIS 202 (1933).

Successor Guardian and Ward Are Not Bound by Adjudication if Not Parties. —

A determination in a proceeding between the surety and the former guardian is not conclusive as against a successor guardian and the ward, neither of whom was a party to that proceeding when the adjudication was made. State ex rel. N.W. Bank v. Fidelity & Cas. Co., 268 N.C. 234 , 150 S.E.2d 396, 1966 N.C. LEXIS 1170 (1966).

§ 35A-1238. Clerk’s liability.

If any clerk commits the estate of a ward to the guardianship of any person without taking good and sufficient bond for the same as required by law, the clerk shall be liable on his official bond, at the suit of the aggrieved party, for all loss and damages sustained for want of sufficient bond being taken; but if the sureties were good at the time of their being accepted, the clerk shall not be liable.
If any clerk willfully or negligently does, or omits to do, any other act prohibited, or other duty imposed on him by law, by which act or omission the estate of any ward suffers damage, the clerk shall be liable on his official bond, at the suit of the aggrieved party, for all loss and damages sustained from such act or omission.

History. 1987, c. 550, s. 1.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former law.

A clerk and sureties on his official bond are liable for loss resulting from a failure to take a good guardian’s bond, and the record of the appointment of the guardian is sufficient evidence of such appointment. Topping v. Windley, 99 N.C. 4 , 5 S.E. 14, 1888 N.C. LEXIS 233 (1888).

The giving of the bond required of a guardian is not essential to the validity of the appointment itself. The failure to take the bond, however, subjects the clerk to the consequences of such omission. Howerton v. Sexton, 104 N.C. 75 , 10 S.E. 148, 1889 N.C. LEXIS 153 (1889).

When Action Lies. —

No action can be maintained on the bond given by a clerk conditioned for the faithful performance of his duty, except where there have been such damages sustained as would give the party a right to maintain an action on the case for the neglect of his official duty. State ex rel. Jones v. Briggs, 46 N.C. 364 , 1854 N.C. LEXIS 106 (1854).

§ 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 be guardians, whether they serve as guardians of the estate, guardians of the person, or general guardians, or one blanket bond covering all agents, the bond or bonds to be conditioned upon faithful performance of their duties as guardians and made payable to the State. The premiums shall be paid by the State.

History. 1987, c. 550, s. 1; 1997-443, s. 11A.17.

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.

History. 1987, c. 550, s. 1.

§ 35A-1241. Powers and duties of guardian of the person.

To the extent that it is not inconsistent with the terms of any order of the clerk or any other court of competent jurisdiction, a guardian of the person has the following powers and duties:
1. The guardian of the person is entitled to custody of the person of the guardian’s ward and shall make provision for the ward’s care, comfort, and maintenance, and shall, as appropriate to the ward’s needs, arrange for the ward’s training, education, employment, rehabilitation, or habilitation. The guardian of the person shall take reasonable care of the ward’s clothing, furniture, vehicles, and other personal effects that are with the ward.
2. The guardian of the person may establish the ward’s place of abode inside or outside this State. In arranging for a place of abode, the guardian of the person shall give preference to places inside this State over places outside this State if in-State and out-of-State places are substantially equivalent. The guardian also shall give preference to places that are not treatment facilities. If the only available and appropriate places of domicile are treatment facilities, the guardian shall give preference to community-based treatment facilities, such as group homes or nursing homes, over treatment facilities that are not community-based.
3. The guardian of the person may give any consent or approval that may be necessary to enable the ward to receive medical, legal, psychological, or other professional care, counsel, treatment, or service. If the patient has a health care agent appointed pursuant to a valid health care power of attorney, the health care agent shall have the right to exercise the authority granted in the health care power of attorney unless the Clerk has suspended the authority of that health care agent in accordance with G.S. 35A-1208 . The guardian shall not, however, consent to the sterilization of a ward with a mental illness or intellectual disability unless the guardian obtains an order from the clerk in accordance with G.S. 35A-1245 . The guardian of the person may give any other consent or approval on the ward’s behalf that may be required or in the ward’s best interest. The guardian may petition the clerk for the clerk’s concurrence in the consent or approval.
A guardian of the person is entitled to be reimbursed out of the ward’s estate for reasonable and proper expenditures incurred in the performance of the guardian’s duties as guardian of the ward’s person.
A guardian of the person who has acted within the limits imposed by this Article or the order of appointment or both is not liable for damages to the ward or the ward’s estate, merely by reason of the guardian’s:
1. Authorizing or giving any consent or approval necessary to enable the ward to receive legal, psychological, or other professional care, counsel, treatment, or service, in a situation where the damages result from the negligence or other acts of a third person; or
2. Authorizing medical treatment or surgery for the ward, if the guardian acted in good faith and was not negligent.

History. 1987, c. 550, s. 1; 2003-13, s. 4; 2007-502, s. 9; 2018-47, s. 1(d).

Editor’s Note.

Session Laws 2018-47, s. 16, made the amendment of this section by Session Laws 2018-47, s. 1(d), effective October 1, 2018, and applicable to proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2007-502, s. 9, effective October 1, 2007, inserted the proviso following “counsel, treatment, or service” near the middle of subdivision (a)(3).

Session Laws 2018-47, s. 1(d), made stylistic changes throughout the section; and in subdivision (a)(3) substituted “ward with a mental illness or intellectual disability” for “mentally ill or mentally retarded ward.” For effective date and applicability, see editor’s note.

CASE NOTES

Powers of Appointment. —

Given supreme court precedent, the limited powers granted to a guardian of the person in G.S. 35A-1241 , and the implied requirement of North Carolina’s Rules of Civil Procedure, which imposed the requirement of appointment of a guardian ad litem where no general or testamentary guardian had been appointed under G.S. 1A-1-17(b)(2), a ward of a guardian of the person was neither properly sued nor served in the absence of a guardian ad litem or general guardian, and the verdict against the ward was set aside. Clawser v. Campbell, 184 N.C. App. 526, 646 S.E.2d 779, 2007 N.C. App. LEXIS 1467 (2007).

Supervision of Guardian by Clerk of Trial Court. —

In a disciplinary proceeding against an attorney for misappropriating the client’s property, the attorney’s explanation had to be rejected that the client wanted the attorney to hold the client’s funds because the client was afraid her relatives, including the guardian, would steal the property. The guardian, once appointed, had various powers pursuant to G.S. 35A-1241 , but was also subject to supervision by the clerk of the trial court and also would be responsible for any loss of her property. N.C. State Bar v. Ethridge, 188 N.C. App. 653, 657 S.E.2d 378, 2008 N.C. App. LEXIS 283 (2008).

Related Custody Action Moot. —

When a stepmother was granted ex parte temporary custody of orphaned stepchildren, an aunt’s subsequent guardianship petition made the custody action moot because, (1) in the guardianship case, the clerk properly exercised jurisdiction, as the children had no natural guardian, and the clerk’s jurisdiction was not divested by the ex parte temporary custody order, since the clerk considered other courts’ custody awards, so the clerk had jurisdiction to appoint the children’s general guardians, an incident of which was physical custody, and (2) any guardianship modification, including custody modification, required filing a motion with the clerk instead of a district court custody action. Corbett v. Lynch, 251 N.C. App. 40, 795 S.E.2d 564, 2016 N.C. App. LEXIS 1315 (2016).

Award of Attorney’s Fees. —

Given that the guardian of the person had the right to employ legal assistance for the benefit of the ward, the trial court had ample statutory authority to authorize payment of attorney’s fees to the attorney and law firm for work performed on behalf of the ward and the guardian of the person pursuant to G.S. 35A-1241(3). In re Clark, 202 N.C. App. 151, 688 S.E.2d 484, 2010 N.C. App. LEXIS 203 (2010).

§ 35A-1242. Status reports for incompetent wards.

Any corporation or disinterested public agent that is guardian of the person for an incompetent person, within six months after being appointed, shall file an initial status report with the clerk and submit a copy of the initial status report to the designated agency, if there is one. Such guardian shall file a second status report with the clerk one year after being appointed, and subsequent reports annually thereafter. The clerk may order any other guardian of the person to file status reports. If a guardian required by this section to file a status report is employed by the designated agency, the guardian shall file any required status report with the clerk and submit a copy of the status report to the designated agency.
(a1) Each status report shall include all of the following:
1. A report or summary of recent medical and dental examinations of the ward by one or more physicians and dentists. In instances when the guardian has made diligent but unsuccessful attempts to secure this information, the guardian shall include in the status report an explanation and documentation of all actions taken to attempt to secure this information.
2. A report on the guardian’s performance of the duties set forth in this Chapter and in the clerk’s order appointing the guardian.
3. A report on the ward’s residence, education, employment, and rehabilitation or habilitation.
4. A report of the guardian’s efforts to restore competency.
5. A report of the guardian’s efforts to seek alternatives to guardianship.
6. If the guardian is a disinterested public agent or corporation, a report of the efforts to identify alternative guardians.
7. The guardian’s recommendations for implementing a more limited guardianship, preserving for the ward the opportunity to exercise rights that are within the ward’s comprehension and judgment.
8. Any additional reports or information required by the clerk.
  (a2) The guardian may include in each status report additional information pertaining to the ward’s best interests.
Each status report shall be filed (i) under the guardian’s oath or affirmation that the report is complete and accurate so far as the guardian is informed and can determine or (ii) with the signature of a disinterested, competent witness to a statement by the guardian that the report is complete and accurate so far as the guardian is informed and can determine. Status reports filed with the signature of a disinterested, competent witness shall include the full name, address, and telephone number of the witness.
(b1) The clerk shall make status reports submitted by corporations or disinterested public agents available to the Director, or the Director’s designee, of the Division of Aging and Adult Services within the Department of Health and Human Services. The Director, or the Director’s designee, shall review the status reports in connection with the Department’s regular program of oversight for these categories of guardians.
A clerk or designated agency that receives a status report shall not make the status report available to anyone other than the guardian, the ward, the court, or State or local human services agencies providing services to the ward.
The clerk, on the clerk’s own motion, or any interested party, may file a motion in the cause pursuant to G.S. 35A-1207 with the clerk in the county where the guardianship is filed to request modification of the order appointing the guardian or guardians or for consideration of any matters contained in the status report.

History. 1987, c. 550, s. 1; 2014-100, s. 12D.4(b).

Effect of Amendments.

Session Laws 2014-100, s. 12D.4(b), effective October 1, 2014, added subsections (a1), (a2), (b1) and (d); in subsection (a), inserted “clerk and submit a copy of the initial status report to the” and deleted “or with the clerk” at the end of the first sentence, deleted “designated agency or the” following “status report with the” in the second sentence and deleted “both the designated agency and” preceding “the clerk” and added “and submit a copy of the status report to the designated agency” at the end of the last sentence; in (b), inserted the clause (i) designator and added clause (ii); in subsection (c) substituted “services agencies” for “resource agencies”; and made minor stylistic changes.

§ 35A-1243. Duties of designated agency.

Within 30 days after it receives a status report, the designated agency shall certify to the clerk that it has reviewed the report and shall mail a copy of its certification to the guardian.
At the same time, the designated agency may:
1. Send its written comments on the report to the clerk, the guardian, or any other person who may have an interest in the ward’s welfare;
2. Notify the guardian that it is able to help the guardian in the performance of his duties;
3. Petition the clerk for an order requiring the guardian to perform the duties imposed on him by the clerk or this Article if it appears that the guardian is not performing those duties;
4. Petition the clerk for an order modifying the terms of the guardianship or the guardianship program or plan if it appears that such should be modified;
5. Petition the clerk for an order removing the guardian from his duties and appointing a successor guardian if it appears that the guardian should be removed for cause;
6. Petition the clerk for an adjudication of restoration to competency; or
7. Petition the clerk for any other appropriate orders.
If the designated agency files such a petition, it shall cause the petition to be signed and acknowledged by the officer, official, employee, or agent who has personal knowledge of the facts set forth in the petition, and it shall set forth all facts known to it that tend to support the relief sought by the petition.
The clerk shall take appropriate action upon the petition in accordance with other provisions or requirements of this Chapter.

History. 1987, c. 550, s. 1.

§ 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 motion or the request of an interested party, promptly order the guardian to render a full and satisfactory report within 20 days after service of the order. If, after due service of the order, the guardian does not file such report, or obtain further time in which to file it, on or before the return day of the order, the clerk may remove him from office or may issue an order or notice to show cause for civil or criminal contempt as provided in Chapter 5A of the General Statutes. In such proceedings, the defaulting guardian may be held personally liable for the costs of the proceeding, including the costs of service of all notices or motions incidental thereto, or the amount of the costs of the proceeding may be deducted from any commissions due to the guardian of the person. Where a corporation or disinterested public agent is guardian of the person, the president or director or person or persons having charge of the guardianship for the corporation or agency, or the person to whom the duty of making status reports has been assigned by the corporation or agency, may be proceeded against as herein provided as if he or they were the guardian personally, provided, the corporation or agency itself may also be fined and/or removed as guardian for such failure or omission.

History. 1987, c. 550, s. 1.

§ 35A-1245. Procedure to permit the sterilization of a ward with a mental illness or intellectual disability in the case of medical necessity.

A guardian of the person shall not consent to the sterilization of a ward with a mental illness or intellectual disability unless an order from the clerk has been obtained in accordance with this section.
If a ward with a mental illness or intellectual disability needs to undergo a medical procedure that would result in sterilization, the ward’s guardian shall petition the clerk for an order to permit the guardian to consent to the procedure. The petition shall contain all of the following:
1. A sworn statement from a physician licensed in this State who has examined the ward that the proposed procedure is medically necessary and not for the sole purpose of sterilization or for the purpose of hygiene or convenience.
2. The name and address of the physician who will perform the procedure.
3. A sworn statement from a psychiatrist or psychologist licensed in this State who has examined the ward as to whether the ward with a mental illness or intellectual disability is able to comprehend the nature of the proposed procedure and its consequences and provide an informed consent to the procedure.
4. If the ward is able to comprehend the nature of the proposed procedure and its consequences, the sworn consent of the ward to the procedure.
A copy of the petition shall be served on the ward personally. If the ward is unable to comprehend the nature of the proposed procedure and its consequences and is unable to provide an informed consent, the clerk shall appoint an attorney to represent the ward in accordance with rules adopted by the Office of Indigent Defense Services.
Should the ward or the ward’s attorney request a hearing, a hearing shall be held. Otherwise, the clerk may enter an order without the appearance of witnesses. If a hearing is held, the guardian and the ward may present evidence.
If the clerk finds all of the following, the clerk shall enter an order permitting the guardian to consent to the proposed procedure:
1. The ward is capable of comprehending the procedure and its consequences and has consented to the procedure, or the ward is unable to comprehend the procedure and its consequences.
2. The procedure is medically necessary and is not solely for the purpose of sterilization or for hygiene or convenience.
The guardian or the ward, the ward’s attorney, or any other interested party may appeal the clerk’s order to the superior court in accordance with G.S. 1-301.2(e).

History. 2003-13, s. 1(a); 2005-250, s. 5; 2018-47, s. 1(e).

Cross References.

As to procedure when surgical operations on prison inmates are necessary, see G.S. 148-22.2 .

Editor’s Note.

Session Laws 2018-47, s. 16, made the amendment of this section by Session Laws 2018-47, s. 1(e ), effective October 1, 2018, and applicable to proceedings commenced on or after that date.

Effect of Amendments.

Session Laws 2005-250, s. 5, effective August 4, 2005, inserted “in accordance with rules adopted by the Office of Indigent Defense Services” at the end of subsection (c).

Session Laws 2018-47, s. 1(e), substituted “ward with a mental illness or intellectual disability” for “mentally ill or a mentally retarded ward” in the section heading and throughout the section; and in the introductory language of subsections (b) and (e) added “all of the.” For effective date and applicability, see editor’s note.

Legal Periodicals.

For note, “Legislative Naiveté in Involuntary Sterilization Laws,” see 12 Wake Forest L. Rev. 1064 (1976).

For comment on In re Sterilization of Moore, 289 N.C. 95 , 221 S.E.2d 307 (1976), see 8 N.C. Cent. L.J. 307 (1977).

For article discussing sterilization of retarded persons, see 60 N.C.L. Rev. 943 (1982).

For note, “In re Truesdell: North Carolina Adopts Two New and Conflicting Standards for Sterilization of Mentally Retarded Persons,” see 64 N.C.L. Rev. 1196 (1986).

For article, “Sterilization of Mentally Retarded Persons: Reproductive Rights and Family Privacy,” see 5 Duke L.J. 806 (1986).

For comment, “Have Your Cake and Eat it Too: Cognitive Neurology and Negligence Law in North Carolina,” see 41 Campbell L. Rev. 181 (2019).

CASE NOTES

Analysis

I. General Consideration
II. Hearings

I.General Consideration

Editor’s Note. —

Most of the cases cited below were decided under former Chapter 35, Article 7, G.S. 35-36 through 35-50, which was repealed by Session Laws 2003-13, s. 1, effective April 17, 2003.

Legislative Classification Is Reasonable. —

Considering the object of this Article (former Chapter 35, Article 7), which is to prevent the procreation of children by a mentally ill or retarded individual who probably would be unable to care for a child or children and who is likely to procreate a child or children who probably would have serious physical, mental or nervous diseases or deficiencies, the classification under this statute (former G.S. 35-36 ) is reasonable. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

The legislative classification of mentally retarded persons is neither arbitrary nor capricious, but rests upon respectable medical knowledge and opinion that such persons are in fact different from the general population and may rationally be accorded different treatment for their benefit and the benefit of the public. North Carolina Ass'n for Retarded Children v. North Carolina, 420 F. Supp. 451, 1976 U.S. Dist. LEXIS 12933 (M.D.N.C. 1976).

Article Not Unconstitutionally Vague or Arbitrary. —

This section (former G.S. 35-36 ) and former G.S. 35-37 through 35-50, inclusive, provide a sufficient judicial standard and are not unconstitutionally vague or arbitrary. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

Not a Violation of Equal Protection. —

Since the North Carolina law applies equally to all those named, this section (former G.S. 35-36 ) and former G.S. 35-37 through 35-50, inclusive, do not violate the equal protection clauses of the United States or North Carolina Constitutions. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

This section (former G.S. 35-36 ) and former G.S. 35-37 do not violate the equal protection clauses of the United States or North Carolina Constitutions since they provide for the sterilization of all mentally ill or retarded persons inside or outside an institution who meet the requirements of these statutes. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

The legislative dual purpose — to prevent the birth of a defective child or the birth of a nondefective child that cannot be cared for by its parent — reflects a compelling state interest, and the classification rests upon a difference having a fair and substantial relation to the object of the legislation and does not, therefore, violate the equal protection clause of the U.S. Const., Amend. XIV. North Carolina Ass'n for Retarded Children v. North Carolina, 420 F. Supp. 451, 1976 U.S. Dist. LEXIS 12933 (M.D.N.C. 1976).

Compelling State Interest Involved. —

State interests in the sterilization of mentally ill or retarded persons rise to the level of a compelling state interest. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

All mentally retarded persons are sufficiently different from the general population to justify classification for some purposes without meeting the compelling governmental interest test. But the right to procreate is a fundamental one and under equal protection challenge sterilization cannot be ordered short of demonstrating a compelling governmental interest. This Article (former Chapter 35, Article 7) is narrowly drawn to express only the legitimate state interest of preventing the birth of a defective child or the birth of a nondefective child that cannot be cared for by its parent, and so viewed, the state’s interest rises to the dignity of a compelling one. North Carolina Ass'n for Retarded Children v. North Carolina, 420 F. Supp. 451, 1976 U.S. Dist. LEXIS 12933 (M.D.N.C. 1976).

Valid Exercise of Police Power. —

The sterilization of mentally ill or retarded persons under the safeguards set out in this Article (former Chapter 35, Article 7) is a valid and reasonable exercise of the police power. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

Not Cruel and Unusual Punishment. —

The contention that sterilization amounts to cruel and unusual punishment is without basis in law since the cruel and unusual punishment clause of the Constitution refers to those persons convicted of a crime, and sterilization under this section (former G.S. 35-36 ) is not a criminal proceeding. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

Application of Statute by Courts. —

Though the sterilization statutes have been determined to meet the tests of constitutionality, the absence of standards and statutory definitions requires that the courts construe and apply the statutory provisions to the evidence in each case so as to adequately protect the respondent’s fundamental rights. In re Johnson, 45 N.C. App. 649, 263 S.E.2d 805, 1980 N.C. App. LEXIS 2693 , dismissed, 300 N.C. 373 , 267 S.E.2d 686, 1980 N.C. LEXIS 1451 (1980).

The object of this Article (former Chapter 35, Article 7) is to prevent the procreation of children by a mentally ill or retarded individual who, because of physical, mental or nervous disease or deficiency which is not likely to materially improve, would probably be unable to care for a child or children and who would likely, unless sterilized, procreate a child or children who probably would have serious physical, mental or nervous diseases or deficiencies. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

Concerns of State in Authorizing Sterilization. —

The welfare of the parent and the future life and health of the unborn child are the chief concerns of the State in authorizing sterilization of individuals under certain circumstances. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

The right to procreate is not absolute but is vulnerable to a certain degree of state regulation. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

The welfare of all citizens should take precedence over the rights of individuals to procreate. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

Right to Prevent Procreation of Children Who Will Become State Burden. —

The people of North Carolina have a right to prevent the procreation of children who will become a burden on the State. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

Former Law Unconstitutional. —

See Brewer v. Valk, 204 N.C. 186 , 167 S.E. 638, 1933 N.C. LEXIS 355 (1933).

Former G.S. 35-39 Neither Overbroad Nor Vague. —

This section (former G.S. 35-39) is not overly broad. Although it permits initiation of the sterilization procedure against any and all members of the class, it does not contemplate that all members of the class will be sterilized. Nor is the standard of selection so vague that it cannot be comprehended and applied. North Carolina Ass'n for Retarded Children v. North Carolina, 420 F. Supp. 451, 1976 U.S. Dist. LEXIS 12933 (M.D.N.C. 1976).

The legislative classification is itself narrowed as to impact so that only mentally retarded persons who are sexually active, and unwilling or incapable of controlling procreation by other contraceptive means, and who are found to be likely to procreate a defective child, or who would be unable because of the degree of retardation to be able to care for a child, may be sterilized. North Carolina Ass'n for Retarded Children v. North Carolina, 420 F. Supp. 451, 1976 U.S. Dist. LEXIS 12933 (M.D.N.C. 1976).

The purpose of the standards governing mentally ill or retarded persons is to prevent unnecessary and unwarranted abridgment of the respondent’s fundamental procreative rights while at the same time allowing the State to further its interests. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

The statutory phrase “care for a child” is not defined, but the courts in construing the phrase must find whether the evidence establishes a minimum standard of care consistent with both State interest and fundamental parental rights. The petitioner has the burden of proving at least probable inability to provide a reasonable domestic environment for the child. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

Findings Required. —

In each case the trial court must carefully review the living conditions of the respondent to determine the substantial likelihood that he or she will voluntarily, or otherwise, engage in sexual activity likely to cause impregnation. This will necessarily include an inquiry into the respondent’s home environment, daily schedule, social activities, and the degree of supervision entailed in each aspect of this schedule. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

For purposes of instituting sterilization proceedings under this section (former G.S. 35-39), a determination that a proposed sterilization is in the respondent’s best interests must include a determination that the respondent is sexually active and that no temporary measure for birth control or contraception will adequately meet the respondent’s needs, in addition to the statutory grounds regarding defective offspring and parental unfitness. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

Before a sterilization can be ordered there must be a showing that the subject be shown to be likely to engage in sexual activity without utilizing contraceptive devices and is, therefore, likely to become impregnated. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

Before the district court judge may enter an order requiring that the operation be performed, he must make the findings of fact required by this section, which amounts to a judicial determination that the allegations contained in the petition are true. North Carolina Ass'n for Retarded Children v. North Carolina, 420 F. Supp. 451, 1976 U.S. Dist. LEXIS 12933 (M.D.N.C. 1976).

This section (former G.S. 35-43) means that the judge must find that the subject is likely to engage in sexual activity without utilizing contraceptive devices and is therefore likely to impregnate or become impregnated. North Carolina Ass'n for Retarded Children v. North Carolina, 420 F. Supp. 451, 1976 U.S. Dist. LEXIS 12933 (M.D.N.C. 1976).

The court must consider and make findings relative to the possibility that the respondent will experience trauma or psychological damage if she becomes pregnant or gives birth, and, conversely, the possibility of trauma or psychological damage from the sterilization operation. The latter consideration, of course, would also be applicable to a male candidate for sterilization. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

The petitioner must prove by clear, strong and convincing evidence that there is a substantial likelihood that respondent will voluntarily or otherwise engage in sexual activity likely to cause impregnation before the district court judge may enter an order and judgment authorizing a sterilization procedure. In re Truesdell, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

“Best Interest” Alone as Basis for Compulsory Sterilization. —

Although subdivision (1) (of former G.S. 35-39) provides that social services shall petition for sterilization if it would be in the “best interests” of the mentally retarded individual, this language is not contained in former G.S. 35-43, the provision which specifically outlines the findings to be made by the trial judge. It is, therefore, doubtful whether compulsory sterilization can be ordered on the basis of undefined “best interests” alone in view of the fundamental interest at stake. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

Petitioner must establish by clear, strong and convincing evidence that respondent is unable or unwilling to control procreation by alternative, less drastic contraceptive methods, including, but not limited to, supervision, education and training. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

This Article (former Chapter 35, Article 7) does not define sterilization or indicate which medical procedure is to be used when a sterilization is ordered. This section (former G.S. 35-39) suggests the existence of various alternative means of sterilization. The statutes are otherwise silent as to the procedures to be used. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

II.Hearings

Legislative Intent. —

It is clear from the language of this section (former G.S. 35-43) that the General Assembly intended to provide the mentally ill and defective with sufficient safeguards to prevent misuse of this potentially dangerous procedure. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

Sterilization may not be ordered if there is a less drastic means available. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

The statute does not limit unfitness to mental retardation. The term “physical, mental or nervous disease or deficiency” includes qualities other than diminished intelligence, and the range of retardation can vary from mild to severe. In re Johnson, 45 N.C. App. 649, 263 S.E.2d 805, 1980 N.C. App. LEXIS 2693 , dismissed, 300 N.C. 373 , 267 S.E.2d 686, 1980 N.C. LEXIS 1451 (1980).

A presumption of unfitness founded solely on retardation is unwarranted. In re Johnson, 45 N.C. App. 649, 263 S.E.2d 805, 1980 N.C. App. LEXIS 2693 , dismissed, 300 N.C. 373 , 267 S.E.2d 686, 1980 N.C. LEXIS 1451 (1980).

Emergency Situations. —

Under former G.S. 35-49, in life-threatening or emergency situations where sterilization is medically necessary, a petition could be granted absent a showing of the factors required by this section. In re Truesdell, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

The burden on the petitioner to show personality defects or traits of unfitness apart from retardation increases as the retardation ranges from severe to mild. In re Johnson, 45 N.C. App. 649, 263 S.E.2d 805, 1980 N.C. App. LEXIS 2693 , dismissed, 300 N.C. 373 , 267 S.E.2d 686, 1980 N.C. LEXIS 1451 (1980).

Inability to Provide Child a Reasonable Environment Must Be Shown. —

The petitioner has the burden of proving at least probable inability to provide a reasonable domestic environment for the child. In re Johnson, 45 N.C. App. 649, 263 S.E.2d 805, 1980 N.C. App. LEXIS 2693 , dismissed, 300 N.C. 373 , 267 S.E.2d 686, 1980 N.C. LEXIS 1451 (1980).

Evidence Must Establish Compelling State Interest. —

The absence of statutory guidance for determining what constitutes proper care of a child and a person’s inability to provide that care places on the courts the burden of requiring that the evidence establishes conclusively a compelling state interest before the fundamental right of procreation can be infringed. In re Johnson, 45 N.C. App. 649, 263 S.E.2d 805, 1980 N.C. App. LEXIS 2693 , dismissed, 300 N.C. 373 , 267 S.E.2d 686, 1980 N.C. LEXIS 1451 (1980).

Relevant Evidence. —

In an involuntary sterilization proceeding based on the ground that respondent because of mental deficiency would probably be unfit to care for a child, evidence concerning respondent’s morals, sexual activity, and attitude toward birth control and her statements to a psychiatrist that in her youth she would get impatient and angry with children left in her care by her parents were relevant on the issues of fitness and care and whether respondent’s condition was likely to improve materially. Johnson v. Johnson, 45 N.C. App. 644, 263 S.E.2d 822, 1980 N.C. App. LEXIS 2689 (1980).

There is no statutory or constitutional authority for considering menstrual problems with respect to involuntary sterilization. The State’s compelling interest is in the prevention of conception, not in the problems respondent’s menstruation may pose for her, and certainly not in the problem it poses for her caretaker. Rather, the inquiry must focus on which method or surgical procedure for sterilization poses the least health risk and the least intrusion into respondent’s bodily integrity. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

No constitutional mandate requires the State to obtain a medical expert on behalf of an indigent respondent. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

The right of cross-examination is specifically provided by this section (former G.S. 35-43). In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

Only Requirement Is Written Objection to Sterilization. —

In order to assure the right of cross-examination under this section (former G.S. 35-43), the only requirement is that the respondent, his guardian, attorney or other interested party object in writing to the sterilization. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

Such Requirement Is Not Unduly Burdensome. —

Since respondent is represented at every stage of the proceeding, the requirement that respondent, his guardian, attorney or other interested party object in writing to the sterilization is not unduly burdensome. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

Burden and Standard of Proof. —

Although this section (former G.S. 35-43) does not specify the burden of proof that the petitioner must meet before the order authorizing the sterilization can be entered, in keeping with the intent of the General Assembly that the rights of the individual must be fully protected, the evidence must be clear, strong and convincing before such an order may be entered. In re Moore, 289 N.C. 95 , 221 S.E.2d 307, 1976 N.C. LEXIS 1222 (1976).

This section (former G.S. 35-43) means that before an order of sterilization can be entered, there must be findings from evidence that is clear, strong and convincing that the subject is likely to engage in sexual activity without using contraceptive devices and that either a defective child is likely to be born or a child born that cannot be cared for by its parent. North Carolina Ass'n for Retarded Children v. North Carolina, 420 F. Supp. 451, 1976 U.S. Dist. LEXIS 12933 (M.D.N.C. 1976).

The petitioner must establish by clear, strong and convincing evidence that respondent is unable or unwilling to control procreation by alternative, less drastic contraceptive methods, including, but not limited to, supervision, education and training. In re Truesdell, 63 N.C. App. 258, 304 S.E.2d 793, 1983 N.C. App. LEXIS 3056 (1983), modified, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

The petitioner who seeks sterilization pursuant to this section (former G.S. 35-43) must satisfy the standards listed by the Court of Appeals in its opinion in North Carolina Ass’n for Retarded Children v. North Carolina, 420 F. Supp. 451 (M.D.N.C. 1976). In addition, the trial judge, in his discretion, may consider certain other factors that he considers to be reflective of the best interests of the respondent in any particular circumstance. In re Truesdell, 313 N.C. 421 , 329 S.E.2d 630, 1985 N.C. LEXIS 1554 (1985).

Instruction on Standard of Proof. —

Where the judge in his charge in effect equated proof by clear, strong and convincing evidence and proof by the greater weight of the evidence, the instruction was error. In re Johnson, 36 N.C. App. 133, 243 S.E.2d 386, 1978 N.C. App. LEXIS 2419 (1978).

The judge should not attempt to define the term “clear, strong and convincing” in his charge. Whether the evidence is clear, strong and convincing is for the jury to resolve. In re Johnson, 36 N.C. App. 133, 243 S.E.2d 386, 1978 N.C. App. LEXIS 2419 (1978).

Prejudicial Comment on Effect of Sterilization Laws. —

An explanation by the judge in his charge of the necessity and effect of laws authorizing sterilization could only result in prejudice to the respondent. It is very likely that it led the jury to believe that the judge felt it should answer the issue in favor of petitioner. In re Johnson, 36 N.C. App. 133, 243 S.E.2d 386, 1978 N.C. App. LEXIS 2419 (1978).

Prejudicial Comment on Procreation of Mentally Defective Child. —

Where there was no allegation and no evidence to support a finding on the second ground, the likelihood of procreating a mentally defective child, but the judge, nevertheless, repeatedly gave instructions on that part of the statute and included in his final mandate an instruction that the jury answer the issue in favor of petitioner if it found that respondent would be likely, unless sterilized, to procreate a child who would probably have serious mental, physical, or nervous disease or deficiency, the instruction was erroneous and prejudicial to respondent. In re Johnson, 36 N.C. App. 133, 243 S.E.2d 386, 1978 N.C. App. LEXIS 2419 (1978).

§§ 35A-1246 through 35A-1249.

Reserved for future codification purposes.

Article 9. Powers and Duties of Guardian of the Estate.

§ 35A-1250. Applicability of Article.

This Article applies only to guardians of the estate, including general guardians exercising authority as guardian of the estate. A guardian of the estate or general guardian shall have all the powers and duties under this Article unless those are inconsistent with the clerk’s order appointing a guardian, in which case the clerk’s order shall prevail.
Nothing contained in this Article shall be construed as authorizing any departure from the express terms or limitations set forth in any court order creating or limiting the guardian’s powers and duties.

History. 1987, c. 550, s. 1.

§ 35A-1251. Guardian’s powers in administering incompetent ward’s estate.

In the case of an incompetent ward, a general guardian or guardian of the estate has the power to perform in a reasonable and prudent manner every act that a reasonable and prudent person would perform incident to the collection, preservation, management, and use of the ward’s estate to accomplish the desired result of administering the ward’s estate legally and in the ward’s best interest, including but not limited to the following specific powers:

To take possession, for the ward’s use, of all the ward’s estate, as defined in G.S. 35A-1202(5).
To receive assets due the ward from any source.
(2a) To obtain the ward’s digital assets, as provided in Chapter 36F of the General Statutes, including catalogues and content, and to request and authorize disclosure of the digital assets.
To maintain any appropriate action or proceeding to recover possession of any of the ward’s property, to determine the title thereto, or to recover damages for any injury done to any of the ward’s property; also, to compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle any other claims in favor of or against the ward.
To complete performance of contracts entered into by the ward that continue as obligations of the ward or his estate, or to refuse to complete the contracts, as the guardian determines to be in the ward’s best interests, taking into account any cause of action that might be maintained against the ward for failure to complete the contract.
To abandon or relinquish all rights in any property when, in the guardian’s opinion, acting reasonably and in good faith, it is valueless, or is so encumbered or is otherwise in a condition that it is of no benefit or value to the ward or his estate.
(5a) To renounce any interest in property as provided in Chapter 31B of the General Statutes, or as otherwise allowed by law.
To vote shares of stock or other securities in person or by general or limited proxy, and to pay sums chargeable or accruing against or on account of securities owned by the ward.
To insure the ward’s assets against damage or loss, at the expense of the ward’s estate.
To pay the ward’s debts and obligations that were incurred prior to the date of adjudication of incompetence or appointment of a guardian when the debt or obligation was incurred for necessary living expenses or taxes; or when the debt or obligation involves a specific lien on real or personal property, if the ward has an equity in the property on which there is a specific lien; or when the guardian is convinced that payment of the debt or obligation is in the best interest of the ward or his estate.
To renew the ward’s obligations for the payment of money. The guardian’s execution of any obligation for the payment of money pursuant to this subsection shall not be held or construed to be binding on the guardian personally.
To pay taxes, assessments, and other expenses incident to the collection, care, administration, and protection of the ward’s estate.
To sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.
To expend estate income on the ward’s behalf and to petition the court for prior approval of expenditures from estate principal.
To pay from the ward’s estate necessary expenses of administering the ward’s estate.
To employ persons, including attorneys, auditors, investment advisors, appraisers, or agents to advise or assist him in the performance of his duties as guardian.
To continue any business or venture or farming operation in which the ward was engaged, where that continuation is reasonably necessary or desirable to preserve the value, including goodwill, of the ward’s interest in the business.
To acquire and retain every kind of property and every kind of investment, including specifically, but without in any way limiting the generality of the foregoing, bonds, debentures, and other corporate or governmental obligations; stocks, preferred or common; real estate mortgages; shares in building and loan associations or savings and loan associations; annual premium or single premium life, endowment, or annuity contracts; and securities of any management type investment company or investment trust registered under the Federal Investment Company Act of 1940, as from time to time amended.
1. Without a court order to lease any of the ward’s real estate for a term of not more than three years, or to sell, lease or exchange any of the ward’s personal property including securities, provided that the aggregate value of all items of the ward’s tangible personal property sold without court order shall not exceed five thousand dollars ($5,000) per accounting period. When any item of the ward’s tangible personal property has a value which when increased by the value of all other tangible personal property previously sold in the estate without a court order would exceed five thousand dollars ($5,000) in the current accounting period, a guardian may sell the item only as provided in subdivision (17)b.
2. A guardian who is required by subdivision (17)a to do so shall, and any other guardian who so desires may, by motion in the cause, request the court to issue him an order to lease any of the ward’s real estate or to sell any item or items of the ward’s personal property. Notice of the motion and of the date, time and place of a hearing thereon shall be served, as provided in G.S. 1A-1 , Rule 5, Rules of Civil Procedure, upon all parties of record and upon any other persons the clerk may direct, and the court may issue the order after conducting a hearing and upon any conditions that the court may require; provided that:
  1. A sale, lease, or exchange under this subdivision may not be subject to Article 29A of Chapter 1 of the General Statutes unless the order so requires; and
  2. The power granted in this subdivision shall not affect the power of the guardian to petition the court for prior approval of expenditures from estate principal under subdivision (12) of this section.
To foreclose, as an incident to the collection of any bond, note or other obligation, any mortgage, deed or trust, or other lien securing the bond, note or other obligation, and to bid in the property at a foreclosure sale, or to acquire the property deed from the mortgagor or obligor without foreclosure; and to retain the property so bid in or taken over without foreclosure.
To borrow money for any periods of time and upon the terms and conditions as to rates, maturities, renewals, and security as the guardian shall deem advisable, including the power of a corporate guardian to borrow from its own banking department, for the purpose of paying debts, taxes, and other claims against the ward, and to mortgage, pledge, or otherwise encumber that portion of the ward’s estate as may be required to secure the loan or loans; provided, in respect to the borrowing of money on the security of the ward’s real property, Subchapter III of this Chapter is controlling.
To execute and deliver all instruments that will accomplish or facilitate the exercise of the powers vested in the guardian.
To expend estate income for the support, maintenance, and education of the ward’s minor children, spouse, and dependents, and to petition the court for prior approval of expenditures from estate principal for these purposes; provided, the clerk, in the original order appointing the guardian or a subsequent order, may require that the expenditures from estate income also be approved in advance. In determining whether and in what amount to make or approve these expenditures, the guardian or clerk shall take into account the ward’s legal obligations to his minor children, spouse, and dependents; the sufficiency of the ward’s estate to meet the ward’s needs; the needs and resources of the ward’s minor children, spouse, and dependents; and the ward’s conduct or expressed wishes, prior to becoming incompetent, in regard to the support of these persons.
To transfer to the spouse of the ward those amounts authorized for transfer to the spouse pursuant to 42 United States Code § 1396r-5.
To create a trust for the benefit of the ward pursuant to 42 United States Code § 1396p(d)(4), provided that all amounts remaining in the trust upon the death of the ward, other than those amounts which must be paid to a state government and those amounts retained by a nonprofit association as set forth in 42 United States Code § 1396p(d)(4)(C), are to be paid to the estate of the ward.
To petition the court for approval of the exercise of any of the following powers with respect to a revocable trust that the ward, if competent, could exercise as settlor of the revocable trust:
1. Revocation of the trust.
2. Amendment of the trust.
3. Additions to the trust.
4. Direction to dispose of property of the trust.
5. The creation of the trust, notwithstanding the provisions of G.S. 36C-4-402(a)(1) and (2).The exercise of the powers described in this subdivision (i) shall not alter the designation of beneficiaries to receive property on the ward’s death under that ward’s existing estate plan but may incorporate tax planning or public benefits planning into the ward’s existing estate plan, which may include leaving beneficial interests in trust rather than outright, and (ii) shall be subject to the provisions of Articles 17, 18, and 19 of this Chapter concerning gifts.

History. 1987, c. 550, s. 1; 1989, c. 473, ss. 3, 13; 1995, c. 235, ss. 6, 8; 1999-270, s. 9; 2004-199, s. 15; 2007-106, s. 52; 2008-87, s. 1; 2013-91, s. 3(e); 2016-53, s. 7.

Cross References.

As to criminal liability of guardian for embezzlement of funds, see G.S. 14-90 .

As to power of guardians to lend portions of estates of wards, and compound interest on obligations due to guardians, see G.S. 24-4 .

As to investment and deposit of funds generally, see G.S. 36A-1 et seq.

As to corporation treating guardian as holder of record of shares, see G.S. 55-7-24 .

As to income taxes, see G.S. 105-154 .

Editor’s Note.

Session Laws 2016-53, s. 11, is a severability clause.

Effect of Amendments.

Session Laws 2004-199, s. 15, effective August 17, 2004, inserted “and those amounts retained by a nonprofit association as set forth in 42 United States Code § 1396p(d)(4)(C)” in subdivision (23).

Session Laws 2007-106, s. 52, effective October 1, 2007, rewrote subdivision (24). See Editor’s note for applicability.

Session Laws 2008-87, s. 1, effective October 1, 2008, in subdivision (17)a., substituted “shall not exceed five thousand dollars ($5,000) per accounting period” for “over the duration of the estate shall not exceed one thousand five hundred dollars ($1,500)” in the first sentence, and substituted “five thousand dollars ($5,000) in the current accounting period” for “one thousand five hundred dollars ($1,500)” in the last sentence.

Session Laws 2013-91, s. 3(e), effective June 12, 2013, in subdivision (24), added “but may incorporate tax planning or public benefits planning into the ward’s existing estate plan, which may include leaving beneficial interests in trust rather than outright” and made a minor punctuation change.

Session Laws 2016-53, s. 7, effective June 30, 2016, added subdivision (2a).

CASE NOTES

Editor’s Note. —

Most of the cases cited below were decided under former G.S. 33-20 and prior law.

Guardian Is Under Fiduciary Obligation to Manage Estate Reasonably and Prudently. —

The guardian is always under a fiduciary obligation to manage the estate reasonably, prudently, and in the ward’s best interest, and in all cases, the guardian’s management of the estate will eventually be subject to judicial scrutiny. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

Guardian Must Preserve Estate and Enforce Ward’s Rights. —

It is the duty of the guardian to preserve the estate of the ward and to take practicable action to enforce the ward’s rights against others. Kuykendall v. Proctor, 270 N.C. 510 , 155 S.E.2d 293, 1967 N.C. LEXIS 1384 (1967).

Guardian Must Diligently Collect Obligation Owing Ward. —

It is the duty of a guardian of the estate of an incompetent person to exercise due diligence in the collection of an obligation owing to the ward. The guardian is liable to the ward’s estate for any loss to it by his failure to do so. Kuykendall v. Proctor, 270 N.C. 510 , 155 S.E.2d 293, 1967 N.C. LEXIS 1384 (1967).

Including Damages for Wrongs Done Ward. —

It is the duty of the guardian of the estate of an incompetent to collect, insofar as practicable, all moneys due the ward, including damages for wrongs done to the ward which are known to the guardian. Kuykendall v. Proctor, 270 N.C. 510 , 155 S.E.2d 293, 1967 N.C. LEXIS 1384 (1967); State ex rel. Duckett v. Pettee, 50 N.C. App. 119, 273 S.E.2d 317, 1980 N.C. App. LEXIS 3471 (1980).

Guardian Is Liable for All He Ought to Have Received. —

A guardian is liable for what he ought to receive, as well as for what he does receive; and if he ought to receive a certain amount of money and does not, but takes something else, his own bond for instance, in the place of money, he and his sureties are liable. State ex rel. Avent v. Womack, 72 N.C. 397 , 1875 N.C. LEXIS 239 (1875).

Where a guardian carelessly and without deliberation accepts for his wards from an insolvent debtor an amount less than they are entitled to receive from a fund, he is liable to the wards for what he failed to collect. Culp v. Stanford, 112 N.C. 664 , 16 S.E. 761, 1893 N.C. LEXIS 265 (1893) (distinguishing) Luton v. Wilcox, 83 N.C. 20 , 1880 N.C. LEXIS 7 (1880).

A guardian is liable not only for what he receives, but for all he ought to have received of his ward’s estate. Kuykendall v. Proctor, 270 N.C. 510 , 155 S.E.2d 293, 1967 N.C. LEXIS 1384 (1967).

By Exercise of Diligence and Good Faith. —

A guardian is responsible, not only for what he receives, but for all he might have received by the exercise of ordinary diligence and the highest degree of good faith. State ex rel. Armfield v. Brown, 73 N.C. 81 , 1875 N.C. LEXIS 21 (1875).

Guardian Need Not Resort to Extraordinary Remedies. —

Guardians are not responsible for losses to their wards attributable to their not having resorted to new and extraordinary remedies, the force and effect of which are doubtful. White v. Robinson, 64 N.C. 698 , 1870 N.C. LEXIS 229 (1870).

A guardian in managing his ward’s estate must act in good faith and with that care and judgment that a man of ordinary prudence exercises in his own affairs. Luton v. Wilcox, 83 N.C. 20 , 1880 N.C. LEXIS 7 (1880).

Guardian Is Empowered to Make Expenditures Without Prior Court Approval Except When Property Mortgaged or Sold. —

In most cases, a guardian is empowered under Chapter 35A to make expenditures from an incompetent ward’s estate without prior court approval; prior approval of expenditures is necessary only when the incompetent’s property is to be mortgaged or sold, or when the expenditures will be made from estate principal. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

Accepting Unsecured Note. —

A guardian who accepts an unsecured note in payment of a debt due his ward is guilty of laches, and is liable to his ward for the amount of such note. Covington v. Leak, 65 N.C. 594 , 1871 N.C. LEXIS 185 (1871).

Where a guardian accepts from an administrator a smaller sum than the wards’ share in the estate, the wards may, at their option, sue the guardian or the administrator for the deficiency. Alexander v. Alexander, 120 N.C. 472 , 27 S.E. 121, 1897 N.C. LEXIS 108 (1897).

Failure to Sue before Insolvency of Debtor. —

Where a guardian waited six months after the principal in a note held by him as guardian died insolvent before he sued the surety, who also became insolvent before the suit was brought, the guardian having an opportunity all the time of knowing the true condition of the obligors, it was held that by his laches he made himself responsible for the loss of the debt. Williamson v. Williams, 59 N.C. 62 , 1860 N.C. LEXIS 15 (1860) (distinguishing) Deberry v. Ivey, 55 N.C. 370 , 1856 N.C. LEXIS 178 (1856); Davis v. Marcum, 57 N.C. 189 , 1858 N.C. LEXIS 207 (1858).

Where a guardian negligently fails to sue on note due his ward’s estate until the parties thereto are insolvent, he is liable for his negligence. Coggins v. Flythe, 113 N.C. 102 , 18 S.E. 96, 1893 N.C. LEXIS 27 (1893).

Failure to Collect Note during Civil War. —

A guardian, who acted in good faith and was not guilty of culpable negligence, was held not to be responsible for omitting to collect a note during the Civil War, when it appeared that both of the two obligors were solvent during the war, and were made insolvent by its results. Love v. Logan, 69 N.C. 70 , 1873 N.C. LEXIS 177 (1873).

The guardian can select the forum, under former section, as there is no statute to the contrary. Lawson v. Langley, 211 N.C. 526 , 191 S.E. 229, 1937 N.C. LEXIS 139 (1937).

No Authority to Bring Divorce Action. —

Nowhere in former Chapter 33 or Chapter 35 is there express statutory authority for the general guardian of an incompetent to bring an action for divorce. Freeman v. Freeman, 34 N.C. App. 301, 237 S.E.2d 857, 1977 N.C. App. LEXIS 1660 (1977).

An action for divorce based upon one year’s separation cannot be maintained by a general guardian on behalf of an incompetent. Freeman v. Freeman, 34 N.C. App. 301, 237 S.E.2d 857, 1977 N.C. App. LEXIS 1660 (1977).

An action for divorce based upon one year’s separation is not a necessary action within former G.S. 33-20. Freeman v. Freeman, 34 N.C. App. 301, 237 S.E.2d 857, 1977 N.C. App. LEXIS 1660 (1977).

Payment of funds to guardian under War Risk Insurance Act vests title in the ward and operates to discharge the obligation of the United States. Hence, the deposit of the funds in a bank duly appointed guardian, and which later became insolvent, does not entitle the surety on the guardianship bond to a preference for the amount of the deposit. In re Home Sav. Bank, 204 N.C. 454 , 168 S.E. 688, 1933 N.C. LEXIS 164 (1933).

As to exchange of security for debt due ward, see Christman v. Wright, 38 N.C. 549 , 1845 N.C. LEXIS 191 (1845).

As to compromise of claim for personal injury to ward, see Bunch v. Foreman Blades Lumber Co., 174 N.C. 8 , 93 S.E. 374, 1917 N.C. LEXIS 3 (1917).

As to statute of limitations upon discovery of fraud, see Johnson v. Pilot Life Ins. Co., 217 N.C. 139 , 7 S.E.2d 475, 1940 N.C. LEXIS 191 (1940).

Settlement of Ward’s Partnership Interest upon Incorporation. —

Court had jurisdiction under former G.S. 33-20 to determine guardian’s petition relative to acceptance of settlement of ward’s interest in partnership under contemplated organization of corporation to take over assets of partnership, since matter involved was not a sale, lease or mortgage of ward’s property cognizable under former G.S. 35-10 and G.S. 35-11. In re Edwards, 243 N.C. 70 , 89 S.E.2d 746, 1955 N.C. LEXIS 697 (1955).

The clerk properly denied petitioner’s request for leave to disclaim her incompetents’ interests in an estate where no evidence in the record indicated that either of the incompetents would, if mentally competent, disclaim her inheritance under the will in favor of the other legatees (although the sisters of one of the incompetents had disclaimed their inheritances in favor of their children so as to avoid estate taxes) and where the petitioner had a personal, albeit indirect, stake in the disclaimer; additionally, such a disclaimer would also create an artificial need for public assistance. In re Caddell, 140 N.C. App. 767, 538 S.E.2d 626, 2000 N.C. App. LEXIS 1256 (2000).

Guardian Not Authorized To Continue Action. —

Trial court erred in denying the collector of an estate partial summary judgment and in granting beneficiaries, a trustee, and a limited liability company (LLC) partial summary judgment in the collector’s action challenging the formation of the LLC and a trust because at the time the trial court entered its order denying the guardian of the estate summary judgment, the guardian was no longer authorized by statute to continue the action; pursuant to G.S. 1A-1 , N.C. R. Civ. P. 25(a), the trial court substituted the collector as plaintiff, and that order was entered after the trial court granted the beneficiaries, trustee, and LLC summary judgment. White v. Harold L. & Audree S. Mills Charitable Remainder Unitrust, 222 N.C. App. 277, 730 S.E.2d 213, 2012 N.C. App. LEXIS 958 (2012).

Conclusion of Law. —

The court committed reversible error in allowing an assistant clerk to testify in the embezzlement and perjury case against an attorney regarding the legality of his actions in handling decedent’s estate, since that was the fundamental question the jury had to answer. State v. Linney, 2000 N.C. App. LEXIS 538 (N.C. Ct. App. May 16, 2000), op. withdrawn, sub. op., 138 N.C. App. 169, 531 S.E.2d 245, 2000 N.C. App. LEXIS 614 (2000).

§ 35A-1252. Guardian’s powers in administering minor ward’s estate.

In the case of a minor ward, a general guardian or guardian of the estate has the power to perform in a reasonable and prudent manner every act that a reasonable and prudent person would perform incident to the collection, preservation, management, and use of the ward’s estate to accomplish the desired result of administering the ward’s estate legally and in the ward’s best interest, including but not limited to the following specific powers:

To take possession, for the ward’s use, of all the ward’s estate, as defined in G.S. 35A-1202(5).
To receive assets due the ward from any source.
(2a) To obtain the ward’s digital assets, as provided in Chapter 36F of the General Statutes, including catalogues and content, and to request and authorize disclosure of the digital assets.
To maintain any appropriate action or proceeding to obtain support to which the ward is legally entitled, to recover possession of any of the ward’s property, to determine the title thereto, or to recover damages for any injury done to any of the ward’s property; also, to compromise, adjust, arbitrate, sue on or defend, abandon, or otherwise deal with and settle any other claims in favor of or against the ward.
To abandon or relinquish all rights in any property when, in the guardian’s opinion, acting reasonably and in good faith, it is valueless, or is so encumbered or is otherwise in such condition that it is of no benefit or value to the ward or his estate.
(4a) To renounce any interest in property as provided in Chapter 31B of the General Statutes, or as otherwise allowed by law.
To vote shares of stock or other securities in person or by general or limited proxy, and to pay sums chargeable or accruing against or on account of securities owned by the ward.
To insure the ward’s assets against damage or loss, at the expense of the ward’s estate.
To pay taxes, assessments, and other expenses incident to the collection, care, administration, and protection of the ward’s estate.
To sell or exercise stock subscription or conversion rights; consent, directly or through a committee or other agent, to the reorganization, consolidation, merger, dissolution, or liquidation of a corporation or other business enterprise.
To expend estate income on the ward’s behalf and to petition the court for prior approval of expenditures from estate principal; provided, neither the existence of the estate nor the guardian’s authority to make expenditures therefrom shall be construed as affecting the legal duty that a parent or other person may have to support and provide for the ward.
To pay from the ward’s estate necessary expenses of administering the ward’s estate.
To employ persons, including attorneys, auditors, investment advisors, appraisers, or agents to advise or assist him in the performance of his duties as guardian.
To continue any business or venture or farming operation in which the ward was engaged, where such continuation is reasonably necessary or desirable to preserve the value, including goodwill, of the ward’s interest in such business.
To acquire and retain every kind of property and every kind of investment, including specifically, but without in any way limiting the generality of the foregoing bonds, debentures, and other corporate or governmental obligations; stocks, preferred or common; real estate mortgages; shares in building and loan associations or savings and loan associations; annual premium or single premium life, endowment, or annuity contracts; and securities of any management type investment company or investment trust registered under the Federal Investment Company Act of 1940, as from time to time amended.
1. Without a court order to lease any of the ward’s real estate for a term of not more than three years, or to sell, lease or exchange any of the ward’s personal property including securities, provided that the aggregate value of all items of the ward’s tangible personal property sold without court order shall not exceed five thousand dollars ($5,000) per accounting period. When any item of the ward’s tangible personal property has a value which when increased by the value of all other tangible personal property previously sold in the estate without a court order would exceed five thousand dollars ($5,000) in the current accounting period, a guardian may sell the item only as provided in subdivision (14)b.
2. A guardian who is required by subdivision (14)a to do so shall, and any other guardian who so desires may, by motion in the cause, request the court to issue him an order to lease any of the ward’s real estate or to sell any item or items of the ward’s personal property. Notice of the motion and of the date, time and place of a hearing thereon shall be served, as provided in G.S. 1A-1 , Rule 5, Rules of Civil Procedure, upon all parties of record and upon such other persons as the clerk may direct, and the court may issue the order after hearing and upon such conditions as the court may require; provided that:
  1. A sale, lease, or exchange under this subdivision may not be subject to Article 29A of Chapter 1 of the General Statutes unless the order so requires; and
  2. The power granted in this subdivision shall not affect the power of the guardian to petition the court for prior approval of expenditures from estate principal under subdivision (9) of this section.
To foreclose, as an incident to the collection of any bond, note or other obligation, any mortgage, deed of trust, or other lien securing such bond, note or other obligation, and to bid in the property at such foreclosure sale, or to acquire the property by deed from the mortgagor or obligor without foreclosure; and to retain the property so bid in or taken over without foreclosure.
To borrow money for such periods of time and upon such terms and conditions as to rates, maturities, renewals, and security as the guardian shall deem advisable, including the power of a corporate guardian to borrow from its own banking department, for the purpose of paying debts, taxes, and other claims against the ward, and to mortgage, pledge, or otherwise encumber such portion of the ward’s estate as may be required to secure such loan or loans; provided, in respect to the borrowing of money on the security of the ward’s real property, Subchapter III of this Chapter is controlling.
To execute and deliver all instruments that will accomplish or facilitate the exercise of the powers vested in the guardian.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 4; 1995, c. 235, s. 7; 2008-87, s. 2; 2016-53, s. 8.

Cross References.

As to criminal liability of guardian for embezzlement of funds, see G.S. 14-90 .

As to power of guardians to lend portions of estates of wards, and compound interest on obligations due to guardians, see G.S. 24-4 .

As to investment and deposit of funds generally, see G.S. 36A-1 et seq.

As to corporation treating guardian as holder of record of shares, see G.S. 55-7-24 .

As to income taxes, see G.S. 105-154 .

As to payment of taxes, see G.S. 105-207.

Editor’s Note.

Session Laws 2016-53, s. 11, is a severability clause.

Effect of Amendments.

Session Laws 2008-87, s. 2, effective October 1, 2008, in subdivision (14)a., substituted “shall not exceed five thousand dollars ($5,000) per accounting period” for “over the duration of the estate shall not exceed one thousand five hundred dollars ($1,500)” in the first sentence, and substituted “five thousand dollars ($5,000) in the current accounting period” for “one thousand five hundred dollars ($1,500)” in the last sentence.

Session Laws 2016-53, s. 8, effective June 30, 2016, added subdivision (2a).

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 33-20 and prior law.

Guardian Must Preserve Estate and Enforce Ward’s Rights. —

Guardian Must Diligently Collect Obligation Owing Ward. —

Including Damages for Wrongs Done Ward. —

Guardian Is Liable for All He Ought to Have Received. —

A guardian is liable not only for what he receives, but for all he ought to have received of his ward’s estate. Kuykendall v. Proctor, 270 N.C. 510 , 155 S.E.2d 293, 1967 N.C. LEXIS 1384 (1967).

Guardian Is Liable for All He Ought to Have Received. —

A guardian is liable not only for what he receives, but for all he ought to have received of his ward’s estate. Kuykendall v. Proctor, 270 N.C. 510 , 155 S.E.2d 293, 1967 N.C. LEXIS 1384 (1967).

By Exercise of Diligence and Good Faith. —

Guardian Need Not Resort to Extraordinary Remedies. —

Accepting Unsecured Note. —

Failure to Sue before Insolvency of Debtor. —

Failure to Collect Note during Civil War. —

A guardian, who acted in good faith and was not guilty of culpable negligence, was held not to the responsible for omitting to collect a note during the Civil War, when it appeared that both of the two obligors were solvent during the war, and were made insolvent by its results. Love v. Logan, 69 N.C. 70 , 1873 N.C. LEXIS 177 (1873).

The guardian can select the forum, under former section, as there is no statute to the contrary. Lawson v. Langley, 211 N.C. 526 , 191 S.E. 229, 1937 N.C. LEXIS 139 (1937).

When a guardian sued a physician for personal injuries to the guardian’s minor ward, it was error to grant the physician’s motion for a change of venue as of right based on a finding that suit was brought in the wrong county because the complaint’s caption and prayer both stated suit was brought by the guardian in the guardian’s capacity as guardian of the ward’s estate, and, when the guardian had brought suit in the guardian’s capacity as the ward’s guardian ad litem, the guardian had so indicated in the complaint’s caption, so suit was brought pursuant to the guardian’s authority in G.S. 35A-1252(3) , and the guardian properly brought the suit in the county of the guardian’s residence. Stern v. Cinoman, 221 N.C. App. 231, 728 S.E.2d 373, 2012 N.C. App. LEXIS 702 (2012).

As to exchange of security for debt due ward, see Christman v. Wright, 38 N.C. 549 , 1845 N.C. LEXIS 191 (1845).

As to compromise of claim for personal injury to ward, see Bunch v. Foreman Blades Lumber Co., 174 N.C. 8 , 93 S.E. 374, 1917 N.C. LEXIS 3 (1917).

As to statute of limitations upon discovery of fraud, see Johnson v. Pilot Life Ins. Co., 217 N.C. 139 , 7 S.E.2d 475, 1940 N.C. LEXIS 191 (1940).

Settlement of Ward’s Partnership Interest upon Incorporation. —

§ 35A-1253. Specific duties of guardian of estate.

In addition to any other duties imposed by law or by order of the clerk, a general guardian or guardian of the estate shall have the following specific duties:

To take possession, for the ward’s use, of all his estate.
To diligently endeavor to collect, by all lawful means, all bonds, notes, obligations, or moneys due his ward.
To pay income taxes, property taxes, or other taxes or assessments owed by the ward, out of the ward’s estate, as required by law. If any guardian allows his ward’s lands to be sold for nonpayment of taxes or assessments, he shall be liable to his ward for the full value thereof.
To observe the standard of judgment and care under the circumstances then prevailing that an ordinarily prudent person of discretion and intelligence, who is a fiduciary of the property of others, would observe as such fiduciary in acquiring, investing, reinvesting, exchanging, retaining, selling, and managing the ward’s property. If the guardian has special skills or is named as guardian on the basis of representations of special skills or expertise, to use those skills.
To obey all lawful orders of the court pertaining to the guardianship and to comply with the accounting requirements of this Subchapter. Nothing in this section shall be construed as broadening the powers granted in G.S. 35A-1251 or G.S. 35A-1252 .

History. 1987, c. 550, s. 1.

§§ 35A-1254 through 35A-1259.

Reserved for future codification purposes.

Article 10. Returns and Accounting.

§ 35A-1260. Applicability.

This Article applies only to general guardians and guardians of the estate.

History. 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; but the clerk may extend such time not exceeding six months, for good cause shown.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 26.

CASE NOTES

Editor’s Note. —

The case cited below was decided under former law.

Guardian Subject to Orders of Clerk by Whom Appointed. —

In the administration of the estate of an incompetent, the guardian is subject to the orders of the clerk by whom he was appointed and to whom he is required by former sections to account. Read v. Turner, 200 N.C. 773 , 158 S.E. 475, 1931 N.C. LEXIS 440 (1931).

§ 35A-1262. Procedure to compel inventory or account.

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 file the inventory or account within the time specified in the order, or to show cause why he should not be removed from office or held in civil contempt, or both. If after due service of the order, the guardian does not, within the time specified in the order, file such inventory or account, or obtain further time to file the same, the clerk may remove him from office, hold him in civil contempt as provided in Article 2 of Chapter 5A, or both.
The guardian shall be personally liable for the costs of any proceeding incident to his failure to file the inventory or account required by G.S. 35A-1261 . Such costs shall be taxed against him by the clerk and may be collected by deduction from any commissions that may be found due the guardian upon final settlement of the estate.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 27.

§ 35A-1263. [Repealed]

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 of any property or interest therein indicated in the original inventory is erroneous or misleading, he shall prepare and file with the clerk a supplementary inventory in the same manner as prescribed for the original inventory. The clerk shall record the supplemental inventory with the original inventory. A guardian who fails to file a supplementary inventory as required by this section shall be subject to the enforcement provisions of G.S. 35A-1262 .

History. 1989, c. 473, s. 29.

§ 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 any of the estate remains in his control, file in the office of the clerk an inventory and account, under oath, of the amount of property received by him, or invested by him, and the manner and nature of such investment, and his receipts and disbursements for the past year in the form of debit and credit. The guardian shall produce vouchers for all payments or verified proof for all payments in lieu of vouchers. The clerk may examine on oath such accounting party, or any other person, concerning the receipts, disbursements or any other matter relating to the estate; and having carefully revised and audited such account, if he approve the same, he must endorse his approval thereon, which shall be deemed prima facie evidence of correctness.

History. 1987, c. 550, s. 1.

Cross References.

As to clerk’s power to audit the account of guardian, see G.S. 7A-103 .

As to vouchers being evidence of disbursement, see G.S. 28A-21-5 .

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former law.

Definition of “Account”. —

An “account” is used in former section in the sense of a statement in writing of debits and credits, or of receipts and payments. And when not only an account, but payment or settlement is intended, additional words are used to express that idea. State v. Dunn, 134 N.C. 663 , 46 S.E. 949, 1904 N.C. LEXIS 143 (1904).

Ward Can Demand Annual Statement. —

A ward is entitled to demand of her guardian an annual statement of the manner and nature of his investments of her estate. Moore v. Askew, 85 N.C. 199 , 1881 N.C. LEXIS 237 (1881).

What to Be Set Out. —

It is the duty of a guardian in making his annual returns to set out the manner in which he has invested the ward’s estate, and the nature of the securities which he holds as guardian. Collins v. Gooch, 97 N.C. 186 , 1 S.E. 653, 1887 N.C. LEXIS 131 (1887).

The annual account of a guardian is competent evidence against him, and presumptive evidence against his sureties. Loftin v. Cobb, 126 N.C. 58 , 35 S.E. 230, 1900 N.C. LEXIS 183 (1900).

Of Good Faith. —

No higher evidence can be offered of that good faith required of a guardian than perfect candor, full information, and minute, detailed accounts. Moore v. Askew, 85 N.C. 199 , 1881 N.C. LEXIS 237 (1881).

Settlement Is Prima Facie Correct When Accepted by the Court. —

The ex parte settlement made by a guardian with the court having jurisdiction of such matters, is, when accepted by the court, prima facie correct, and while not conclusive upon creditors or next of kin, and strict proof and specific assignment of errors are not required as in actions to surcharge a stated account, nevertheless the burden is on the party attacking such settlement to establish, by a preponderance of testimony, its incorrectness. Turner v. Turner, 104 N.C. 566 , 10 S.E. 606, 1889 N.C. LEXIS 237 (1889).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— The opinion cited below was issued under former G.S. 33-39.

Disapproval of Guardian’s Final Account Where Distribution of Ward’s Estate Is to Ward’s Distributee Rather Than Ward’s Administrator. — Honorable Lanie M. Hayes, Clerk of Superior Court, Warren County, 40 N.C. Op. Att'y Gen. 32 (1969).

§ 35A-1265. Procedure to compel accounting.

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 guardian to render a full and satisfactory account, as required by law, within 20 days after service of the order. Upon return of the order, duly served, if the guardian fails to appear or refuses to exhibit such account, the clerk may issue an attachment against him for contempt and commit him until he exhibits such account, and may likewise remove him from office. In all proceedings hereunder the defaulting guardian will be liable personally for the costs of the said proceedings, including the costs of service of all notices or writs incidental to, or thereby acquiring, and also including reasonable attorney fees and expenses incurred by a successor guardian or other person in bringing any such proceeding, or other proceedings deemed reasonable and necessary to discover or obtain possession of assets of the ward in the possession of the defaulting guardian or which the defaulting guardian should have discovered or which the defaulting guardian should have turned over to the successor guardian. The amount of the costs and attorney fees and expenses of such proceeding may be deducted from any commissions which may be found due said guardian on settlement of the estate.
Where a corporation is guardian, the president, cashier, trust officer or the person or persons having charge of the particular estate for the corporation, or the person to whom the duty of making reports of said estate has been assigned by the officers or directors of the corporation, may be proceeded against and committed to jail as herein provided as if he or they were the guardian or guardians personally: Provided, it is found as a fact that the failure or omission to file such account or to obey the order of the court in reference thereto is willful on the part of the officer charged therewith: Provided further, the corporation itself may be fined and/or removed as such guardian for such failure or omission.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 16.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former law.

Removal for Failure to Account. —

See Sanderson v. Sanderson, 79 N.C. 369 , 1878 N.C. LEXIS 72 (1878); In re Dixon, 156 N.C. 26 , 72 S.E. 71, 1911 N.C. LEXIS 121 (1911).

§ 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 the period of his most recent annual account to the date of that event. If the clerk, after review of the guardian’s account, approves the account, the clerk shall enter an order discharging the guardian from further liability.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 32.

Cross References.

As to accounting for compound interest in final settlement, see G.S. 24-4 .

As to necessity for payment of taxes before final accounting, see G.S. 105-240 .

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former law.

Former section is not intended to bestow upon the guardian the ward’s moneys and properties for six months (now 60 days) after he becomes of age, nor to deprive him of the right to bring an action to recover them during the period, but simply means that the guardian is presumed to have settled with his ward within such six months (now 60 days), and after its lapse the clerk can call on the guardian to file his final account, with the receipts of the ward, in full settlement, to complete the record in his office, for the section states that such return shall be “audited and recorded.” Self v. Shugart, 135 N.C. 185 , 47 S.E. 484, 1904 N.C. LEXIS 22 (1904).

Jurisdiction. —

The clerk of the superior court has jurisdiction of settlements between guardian and ward, and, of course, between the guardian and the ward’s personal representative. McNeill v. Hodges, 105 N.C. 52 , 11 S.E. 265, 1890 N.C. LEXIS 196 (1890); McLean v. Breece, 113 N.C. 390 , 18 S.E. 694, 1893 N.C. LEXIS 89 (1893).

“Audit” Construed. —

When the former section directs that the clerk shall “audit” the account, it implies that he shall pursue the usual course which has been found to be just and convenient in such cases. Rowland v. Thompson, 64 N.C. 714 , 1870 N.C. LEXIS 233 (1870).

Action Barred 10 Years after Ward Comes of Age. —

Ten years after the ward comes of age bars an action by him against his guardian for settlement. Dunn v. Beaman, 126 N.C. 766 , 36 S.E. 172, 1900 N.C. LEXIS 313 (1900).

When Action Barred as to Sureties. —

An action for breach of the guardianship bond based upon former section is barred as to the sureties after three years from the date the guardian should have made payment, and the fact that the guardian continued to pay the ward interest on the amount due the ward for several years after the ward’s majority does not affect the running of the statute as to the sureties. State ex rel. Finn v. Fountain, 205 N.C. 217 , 171 S.E. 85, 1933 N.C. LEXIS 510 (1933). See Copley v. Scarlett, 214 N.C. 31 , 197 S.E. 623, 1938 N.C. LEXIS 258 (1938).

Judgment Is an Estoppel. —

The clerk of the superior court, having jurisdiction of proceedings against a guardian for a settlement, a judgment rendered therein is an estoppel to an action in the superior court between the same parties and upon the same question, and cannot be attacked collaterally, but can be impeached for fraud only by a direct proceeding for that purpose. Donnelly v. Wilcox, 113 N.C. 408 , 18 S.E. 339, 1893 N.C. LEXIS 92 (1893).

Distributees May Have Accounting. —

The express trust existing between the guardian and ward terminates at death of the latter, and the ward’s distributees may have letters of administration taken out and call for an accounting. Lowder v. Hathcock, 150 N.C. 438 , 64 S.E. 194, 1909 N.C. LEXIS 74 (1909).

Effect of Wrongful Settlement. —

Where a guardian surrendered his office in March to one whom he supposed to be his legal successor and made a settlement with him, though he was not regularly appointed guardian until December following, but in the meantime acted as such in good faith, it was held that the management of the fund from March to December must be treated as an exercise of an agency of the former guardian, whose bond is responsible for any loss resulting therefrom. Jennings v. Copeland, 90 N.C. 572 , 1884 N.C. LEXIS 280 (1884).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— The opinions cited below were issued under former G.S. 33-41.

§ 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 more in one year than the profits of the ward’s estate, for his education and maintenance, the guardian shall be allowed and paid for the same out of the profits of the estate in any other year; but such disbursements must, in all cases, be suitable to the degree and circumstances of the estate of the ward.

History. 1987, c. 550, s. 1.

Cross References.

As to expense of bond being lawful expense, see G.S. 58-73-35 .

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former law.

A guardian should be charged with what he receives and credited with what he pays out, when it does not appear that he collected anything prematurely or kept on hand any unreasonable sum. Freeman v. Wilson, 74 N.C. 368 , 1876 N.C. LEXIS 94 (1876).

Credit for Paying Debts Due. —

When the guardian in good faith pays debts that ought to be paid, and by so doing the ward’s estate suffers no prejudice, he will be allowed credit for disbursements of assets in his hands in such respects. Adams v. Thomas, 83 N.C. 521 , 1880 N.C. LEXIS 109 (1880); McLean v. Breece, 113 N.C. 390 , 18 S.E. 694, 1893 N.C. LEXIS 89 (1893).

Disbursement Where Ward Deceased and Only Child Is of Age. —

Where, in the settlement of the guardian’s account, the ward is dead and his only child is of age, and it appears that the guardian, in good faith, paid debts without prejudice to the estate, the disbursement would be allowed. McLean v. Breece, 113 N.C. 390 , 18 S.E. 694, 1893 N.C. LEXIS 89 (1893).

Exceeding Income of Estate. —

In paying the accounts of a guardian, he cannot, except under rare circumstances, be allowed disbursements beyond the income of his ward. Caffey v. McMichael, 64 N.C. 507 , 1870 N.C. LEXIS 159 (1870); Johnston v. Haynes, 68 N.C. 514 , 1873 N.C. LEXIS 138 (1873).

A guardian will not be permitted to use more than the accruing profits of his ward’s estate in the maintenance and education of the ward, except with the sanction of the court, or in extreme cases of urgent necessity. Tharington v. Tharington, 99 N.C. 118 , 5 S.E. 414, 1888 N.C. LEXIS 256 (1888).

Exceeding Income of Estate — Clerk May Allow Credit. —

The clerk of the superior court may allow a guardian credit for money necessarily expended in the education of the ward, though the amount exceeded the income and was made without the permission of the clerk. Duffy v. Williams, 133 N.C. 195 , 45 S.E. 548, 1903 N.C. LEXIS 42 (1903).

Exceeding Income of Estate — Setting Ward Up in Business. —

A guardian who advances money for his ward over and above the income of his estate, in order to set him up in business, or for other purposes, without applying to the court for leave, is not entitled to charge the ward with it. Shaw v. Coble, 63 N.C. 377 , 1869 N.C. LEXIS 86 (1869).

Father as Guardian May Not Charge Children for Education. —

A father, or his trustee, in settling his accounts as guardian for his children, has no right to charge the children with the amount expended for their education. Walker v. Crowder, 37 N.C. 478 , 1843 N.C. LEXIS 152 (1843).

Father May Not Charge for Child’s Maintenance without Court Approval. —

A father, though he be the guardian of his minor child’s estate, is not ordinarily permitted to charge for its maintenance, and, if able, he is himself bound to maintain his child; if not so, he must, before applying any of his ward’s income to that end, procure the sanction of the proper court. Burke v. Turner, 85 N.C. 500 , 1881 N.C. LEXIS 304 (1881).

May Not Charge for Board and Other Necessaries. —

Where a stepfather becomes guardian to his stepchild, he is not entitled to charge for board and other necessaries furnished to his ward antecedently to his appointment as guardian; the infant being incompetent to contract therefor. Barnes v. Ward, 45 N.C. 93 , 1852 N.C. LEXIS 20 (1852).

Payments to Mother for Board of Wards after Majority. —

A guardian is not chargeable with moneys paid to the mother of his wards for their board after their arrival at full age, no objection being urged against the propriety or justness of the claim, or of the price paid. McNeill v. Hodges, 83 N.C. 504 , 1880 N.C. LEXIS 107 (1880).

Counsel Fees. —

Fees paid by a guardian to the counsel for services rendered in obtaining an unfair settlement with the ward, and in aiding the guardian to cover up the fraud, cannot be allowed the latter in his settlement. Johnston v. Haynes, 68 N.C. 509 , 1873 N.C. LEXIS 137 (1873).

A guardian should be allowed reasonable attorneys’ fees paid in good faith. Burke v. Turner, 85 N.C. 500 , 1881 N.C. LEXIS 304 (1881).

The employment of counsel for legal advice and assistance in connection with the administration of the wards’ estate is a proper expense to be charged in the guardian’s account, if in reasonable amount, and for the benefit of the wards. Maryland Cas. Co. v. Lawing, 225 N.C. 103 , 33 S.E.2d 609, 1945 N.C. LEXIS 272 (1945).

Where the interests of the guardian and wards are antagonistic and the services rendered by the attorney are in the interest of the former rather than the latter the obligation to pay therefor is the individual liability of the guardian. Maryland Cas. Co. v. Lawing, 225 N.C. 103 , 33 S.E.2d 609, 1945 N.C. LEXIS 272 (1945) (citing) Lightner v. Boone, 221 N.C. 78 , 19 S.E.2d 144, 1942 N.C. LEXIS 397 (1942).

§ 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 the court all investments and bank statements showing cash balance, and the clerk shall certify on the original account that an examination was made of all investments and the cash balance, and that the same are correctly stated in the account: Provided, such examination may be made by the clerk in the county in which such guardian resides or the county in which such securities are located and, when the guardian is a duly authorized bank or trust company, such examination may be made by the clerk in the county in which such bank or trust company has its principal office or in which such securities are located; the certificate of the clerk of such county shall be accepted by the clerk of any county in which such guardian is required to file an account; provided that banks organized under the laws of North Carolina or the acts of Congress, engaged in doing a trust and fiduciary business in this State, when acting as guardian or in other fiduciary capacity, shall be exempt from the requirements of this section, when a certificate executed by a trust examiner employed by a governmental unit, by a bank’s internal auditors who are responsible only to the bank’s board of directors or by an independent certified public accountant who is responsible only to the bank’s board of directors is exhibited to the clerk and when said certificate shows that the securities have been examined within one year and that the securities were held at the time of the examination by the fiduciary or by a clearing corporation for the fiduciary and that the person making such certification has no reason to believe said securities are not still so held. Nothing herein contained shall be construed to abridge the inherent right of the clerk to require the production of securities, should he desire to do so.

History. 1987, c. 550, s. 1.

§ 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 under the same rules and restrictions as allowances are made to executors, administrators and collectors under the provisions of G.S. 28A-23-3 and G.S. 28A-23-4 .

History. 1987, c. 550, s. 1; 1989, c. 473, s. 21.

CASE NOTES

Editor’s Note. —

Most of the cases cited below were decided under former law.

Commissions are only a compensation to the guardian for his time and trouble in managing his ward’s estate. Walton v. Erwin, 36 N.C. 136 , 1840 N.C. LEXIS 29 (1840).

And the time spent in the management of his ward’s estate may be considered in fixing his commissions, but cannot be separately charged. Shutt v. Carloss, 36 N.C. 232 , 1840 N.C. LEXIS 44 (1840).

Guardian is entitled to commissions, although he omitted to keep and render regular accounts, where no imputation is cast upon his integrity by reason of the neglect. McNeill v. Hodges, 83 N.C. 504 , 1880 N.C. LEXIS 107 (1880).

But where he is grossly negligent, it is otherwise. Topping v. Windley, 99 N.C. 4 , 5 S.E. 14, 1888 N.C. LEXIS 233 (1888).

Payments to Guardian’s Firm. —

A guardian is entitled to commissions on payments made for his ward for goods bought of a firm of which the guardian was a member. Williamson v. Williams, 59 N.C. 62 , 1860 N.C. LEXIS 15 (1860).

When Ward Boards with Guardian. —

A guardian is not entitled to commissions on charges for board while the ward lived with the guardian’s family. Williamson v. Williams, 59 N.C. 62 , 1860 N.C. LEXIS 15 (1860).

Securities Delivered at Majority. —

Commissions should be allowed a guardian on the amount of the notes and other securities for debt delivered to the ward upon the termination of the guardianship. Whitford v. Foy, 65 N.C. 265 , 1871 N.C. LEXIS 83 (1871).

Disbursement after Ward’s Majority. —

A guardian is not entitled to commissions upon any disbursement made after his ward arrives at full age. McNeill v. Hodges, 83 N.C. 504 , 1880 N.C. LEXIS 107 (1880).

Bank as Administrator and Guardian of Distributee. —

Where a bank, acting as administrator and as guardian for one of the distributees, pays over to itself as guardian the distributive share of its ward, such amount is cash received by it as guardian, and it is entitled by law to commissions thereon. Rose v. Bank of Wadesboro, 217 N.C. 600 , 9 S.E.2d 2, 1940 N.C. LEXIS 304 (1940).

Using Ward’s Money in Own Business. —

A guardian will be allowed commissions, although he uses his ward’s money in his business, if he makes regular returns, so as to show at all times what amount is due his ward. State ex rel. Carr v. Askew, 94 N.C. 194 , 1886 N.C. LEXIS 36 (1886) (distinguishing) Burke v. Turner, 85 N.C. 500 , 1881 N.C. LEXIS 304 (1881). See Fisher v. Brown, 135 N.C. 198 , 47 S.E. 398, 1904 N.C. LEXIS 23 (1904).

Using Ward’s Money in Own Business — Gross Negligence. —

A guardian is not entitled to commissions on money collected and used by him in his own business where he was guilty of gross negligence in not making his returns. Burke v. Turner, 85 N.C. 500 , 1881 N.C. LEXIS 304 (1881).

Rate of Commission. —

Reasonable commissions will always be allowed to a guardian unless in cases of fraud or very culpable negligence. The rate will depend upon a variety of circumstances, such as the amount of the estate, the trouble in managing it, whether fees have been paid to counsel for assisting him in the management, the last of which will lessen it. Whitford v. Foy, 65 N.C. 265 , 1871 N.C. LEXIS 83 (1871).

Rate of Commission — Two and One-Half Percent. —

Two and one-half percent was ample commission to a guardian receiving most of the ward’s property, without litigation or difficulty, in the shape of notes payable to himself, which he retained six years collecting but little interest, when he voluntarily resigned and delivered the notes to his successor. Walton v. Erwin, 36 N.C. 136 , 1840 N.C. LEXIS 29 (1840).

Rate of Commission — Five Percent. —

Five percent was not an unreasonable allowance to a guardian as commissions on his receipts and disbursements, when these were numerous, and extended over a period of 14 years. Covington v. Leak, 65 N.C. 594 , 1871 N.C. LEXIS 185 (1871).

Commission of the highest percentage allowed by statute, will be allowed to a guardian only in a case of the greatest merit, as where his duties have been troublesome and of long continuance. Walton v. Erwin, 36 N.C. 136 , 1840 N.C. LEXIS 29 (1840).

Referee’s Decision Usually Adopted. —

The amount of allowance of commissions to a guardian by a referee is usually adopted by the court, unless it is shown to be excessive. Johnston v. Haynes, 68 N.C. 514 , 1873 N.C. LEXIS 138 (1873); Whitford v. Foy, 71 N.C. 527 , 1874 N.C. LEXIS 143 (1874).

Appellate Review of Referee’s Finding. —

An appellate court will not review the finding of a referee as to the commissions allowed a guardian, unless such commissions are shown to be grossly erroneous. Whitford v. Foy, 71 N.C. 527 , 1874 N.C. LEXIS 143 (1874).

Article 11. Public Guardians.

§ 35A-1270. Appointment; term; oath.

There may be in every county a public guardian, to be appointed by the clerk for a term of eight years. The public guardian shall take and subscribe an oath or affirmation faithfully and honestly to discharge the duties imposed upon him; the oath or affirmation so taken and subscribed shall be filed in the office of the clerk.

History. 1987, c. 550, s. 1.

§ 35A-1271. Bond of public guardian; increasing bond.

The public guardian shall enter into bond with three or more sureties, approved by the clerk in the penal sum of six thousand dollars ($6,000), payable to the State of North Carolina, conditioned faithfully to perform the duties of his office and obey all lawful orders of the superior or other courts touching said guardianship of all wards, money or estate that may come into his hands. Whenever the aggregate value of the real and personal estate belonging to his several wards exceeds one-half the bond herein required the clerk shall require him to enlarge his bond in amount so as to cover at least double the aggregate amount under his control as guardian.

History. 1987, c. 550, s. 1.

§ 35A-1272. Powers, duties, liabilities, compensation.

The powers and duties of said public guardian shall be the same as other guardians, and he shall be subject to the same liabilities as other guardians under the existing laws, and shall receive the same compensation as other guardians.

History. 1987, c. 550, s. 1.

§ 35A-1273. When letters issue to public guardian.

The public guardian shall apply for and obtain letters of guardianship in the following cases:

When a period of six months has elapsed from the discovery of any property belonging to any minor or incompetent person without guardian.
When any person entitled to letters of guardianship shall request in writing the clerk to issue letters to the public guardian; but it is lawful and the duty of the clerk to revoke said letters of guardianship at any time after issuing the same upon application in writing by any person entitled to qualify as guardian, setting forth a sufficient cause for such revocation.

History. 1987, c. 550, s. 1.

§§ 35A-1274 through 35A-1279.

Reserved for future codification purposes.

Article 12. Nonresident Ward Having Property in State.

§ 35A-1280. Appointment of ancillary guardian.

A clerk may appoint an ancillary guardian whenever it appears by petition or application and due proof to the satisfaction of the clerk that:
1. There is in the county of the clerk’s jurisdiction real or personal property in which a nonresident of the State of North Carolina has an ownership or other interest; and
2. The nonresident is incompetent or is a minor and a guardian of the estate or general guardian, or a comparable fiduciary, has been appointed and is still serving for the nonresident in the state of his or her residence; and
3. That the nonresident ward has no guardian in the State of North Carolina.
Except as otherwise ordered by the clerk or provided herein, an ancillary guardian shall have all the powers, duties, and responsibilities with respect to the nonresident ward’s estate in the State of North Carolina as guardians otherwise appointed have. An ancillary guardian shall annually make an accounting to the court in this State and remit to the guardian in the state of the ward’s residence any net rents of the real estate or any proceeds of sale.
A certified or exemplified copy of letters of appointment or other official record of a court of record appointing a guardian for a nonresident in the state of his residence shall be conclusive proof of the fact of the ward’s minority or incompetence and of the appointment of the guardian in the state of the ward’s residence; provided, that the letters of appointment or other record shall show that the guardianship is still in effect in the state of the ward’s residence and that the ward’s incompetence or minority still exists.
Upon the appointment of an ancillary guardian under this Article, the clerk shall notify the appropriate court in the county of the ward’s residence and the guardian in the state of the ward’s residence.

History. 1987, c. 550, s. 1.

Editor’s Note.

Session Laws 2016-72, s. 3, provides: “Nothing in this act shall be construed to otherwise affect the requirements for seeking an ancillary guardianship under G.S. 35A-1280 or for petitioning the court for the removal of personalty from the State under G.S. 35A-1281 .” The phrase “this act” refers to Session Laws 2016-72, which which enacted Chapter 35B, the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

§ 35A-1281. Removal of ward’s personalty from State.

For purposes of this section, the term “personal estate” means:
1. Personal property;
2. Personal property substituted for realty by decree of court;
3. Any money arising from the sale of real estate, whether the same be in the hands of any guardian residing in this State; or in the hands of any executor, administrator, or other person holding for the ward; or, if not being adversely held and claimed, not in the lawful possession or control of any person.
Where any ward residing in another state or territory, or in the District of Columbia, or Canada, or other foreign country, is entitled to any personal estate in this State, the ward’s guardian or trustee duly appointed at the place where such ward resides, or, in the event no guardian or trustee has been appointed, the court or officer of the court authorized by the laws of such place to receive moneys belonging to any ward when no guardian or trustee has been appointed, may apply to have such estate removed to the residence of the ward by petition filed before the clerk in the county in which the property or some portion thereof is situated. Such petition shall be proceeded with as in other cases of special proceedings.
The petitioner must show to the court a copy of his appointment as a guardian or trustee and bond duly authenticated, and must prove to the court that the bond is sufficient, in the ability of the sureties as well as in amount, to secure all the estate of the ward wherever situated: Provided, that in all cases where a banking institution, resident and doing business in a foreign state, is a guardian or trustee of any person and is not required to execute a bond to qualify as guardian or trustee under the laws of the state in which such guardian or trustee qualified and was appointed, and no sureties are or were required by the state in which said banking institution qualified as guardian or trustee, and this fact affirmatively appears to the court, then the personal estate of the ward may be removed from this State without the finding of a court with reference to any sureties, and the court in which the petition for the removal of the property of the ward is filed may order the transfer and removal of the property of the ward and the payment and delivery of the same to the nonresident guardian or trustee without regard to whether a nonresident guardian or trustee has filed a bond with sureties; and the finding of the court that the said guardian or trustee is a banking institution and has duly qualified and been appointed guardian or trustee under the laws of the state where the ward is resident shall be sufficient. Any person may be made a party defendant to the proceeding who may be made a party defendant in civil actions under the provisions of Chapter 1A of the General Statutes.

History. 1987, c. 550, s. 1.

Cross References.

As to removal of trust funds of nonresidents from State, see G.S. 36A-13 .

Editor’s Note.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 33-48 and prior law.

When Local Guardian Not Necessary. —

Where a foreign guardian has been duly appointed in the state of his own residence and that of his wards, and has filed a certified copy of his appointment, with a bond sufficient both as to the amount and the financial ability of the sureties to protect the estate of his wards and in conformity with former G.S. 33-48 and former G.S. 33-49, with his petition to the clerk of the court as required by these statutes, it is not necessary that a local guardian be appointed, but the court in this State, before which the matter is properly pending, may order that the foreign guardian be permitted to withdraw the estate of his wards to the place of foreign jurisdiction. Cilley v. Geitner, 183 N.C. 528 , 111 S.E. 866, 1922 N.C. LEXIS 309 (1922).

When Guardian Must Be Resident. —

Where the infant grandchildren of the testator take upon a contingency, as directed by the will, properly probated here, it is required that the guardian appointed be a resident of this State, according to our law, unless the funds have been properly removed to another state, under former G.S. 33-48 and former G.S. 33-49; and the law of this State governs the interpretation of the will when the testator died domiciled here. Cilley v. Geitner, 182 N.C. 714 , 110 S.E. 61, 1921 N.C. LEXIS 309 (1921).

Foreign Guardian as Next Friend. —

A guardian appointed in another state has no authority to represent his wards in suits and proceedings in this State, but when he brings suit for them as guardian it will be treated as if he were their next friend. Tate v. Mott, 96 N.C. 19 , 2 S.E. 176, 1887 N.C. LEXIS 6 (1887).

Removal Held Properly Refused. —

Where it appeared that the property in this State of a ward residing in another state consisted of good bonds at interest in the hands of his guardian here, a part of which arose from the sale of land, and the ward was nearly of age, and there was no special necessity made to appear for making a transfer of the property, the court of equity, in the exercise of its discretion, refused to order a transfer of the estate to the hands of a guardian appointed in such other state. Douglas v. Caldwell, 59 N.C. 20 , 1860 N.C. LEXIS 6 (1860).

A guardian in another state of nonresident wards may proceed to obtain possession of the property bequeathed to the wards and in the hands of an executor in this State under a will duly probated here under the provisions of former G.S. 33-48 and G.S. 36A-13 , relating to property in the hands of a trustee residing in this State, is not applicable. Fidelity Trust Co. v. Walton, 198 N.C. 790 , 153 S.E. 401, 1930 N.C. LEXIS 488 (1930).

The petition and proceeding prescribed by former G.S. 33-48 are jurisdictional, in order to authorize the transfer of the funds of an infant domiciled in this State to a guardian in another state; and an order, by the judge of the superior court or clerk, for its transfer otherwise is void. State ex rel. Page v. Sawyer, 223 N.C. 102 , 25 S.E.2d 443, 1943 N.C. LEXIS 211 (1943).

§§ 35A-1282 through 35A-1289.

Reserved for future codification purposes.

Article 13. Removal or Resignation of Guardian; Successor Guardian; Estates Without Guardians; Termination of Guardianship.

§ 35A-1290. Removal by Clerk.

The clerk has the power and authority on information or complaint made to remove any guardian appointed under the provisions of this Subchapter, to appoint successor guardians, and to make rules or enter orders for the better management of estates and the better care and maintenance of wards and their dependents.
It is the clerk’s duty to remove a guardian or to take other action sufficient to protect the ward’s interests in the following cases:
1. The guardian wastes the ward’s money or estate or converts it to his own use.
2. The guardian in any manner mismanages the ward’s estate.
3. The guardian neglects to care for or maintain the ward or his dependents in a suitable manner.
4. The guardian or his sureties are likely to become insolvent or to become nonresidents of the State.
5. The original appointment was made on the basis of a false representation or a mistake.
6. The guardian has violated a fiduciary duty through default or misconduct.
7. The guardian has a private interest, whether direct or indirect, that might tend to hinder or be adverse to carrying out his duties as guardian.
8. The guardian has been adjudged incompetent by a court of competent jurisdiction and has not been restored to competence.
9. The guardian has been convicted of a felony under the laws of the United States or of any state or territory of the United States or of the District of Columbia and his citizenship has not been restored.
10. The guardian was originally unqualified for appointment and continues to be unqualified, or the guardian would no longer qualify for appointment as guardian due to a change in residence, a change in the charter of a corporate guardian, or any other reason.
11. The guardian is the ward’s spouse and has lost his rights as provided by Chapter 31A of the General Statutes.
12. The guardian fails to post, renew, or increase a bond as required by law or by order of the court.
13. The guardian refuses or fails without justification to obey any citation, notice, or process served on him in regard to the guardianship.
14. The guardian fails to file required accountings with the clerk.
15. The clerk finds the guardian unsuitable to continue serving as guardian for any reason.
16. The guardian is a nonresident of the State and refuses or fails to obey any citation, notice, or process served on the guardian or the guardian’s process agent.
17. The guardian is a licensed attorney, and the clerk is in receipt of an order entered pursuant to G.S. 84-28 enjoining, suspending, or disbarring the attorney.
Repealed by Session Laws 2017-158, s. 4, effective July 21, 2017.

History. 1987, c. 550, s. 1; 2004-203, s. 31(b); 2017-158, s. 4.

Cross References.

As to criminal liability for embezzlement, see G.S. 14-90 .

As to disqualifications to act as administrator, see G.S. 28A-4-2 .

As to removal of an administrator, see G.S. 28A-9-1 .

Effect of Amendments.

Session Laws 2004-203, s. 31(b), effective August 17, 2004, added “or to take other action sufficient to protect the ward’s interests” in the introductory paragraph of subsection (c); and added subdivision (c)(9).

Session Laws 2017-158, s. 4, effective July 21, 2017, deleted the introductory language of subsection (c) which formerly read: “It is the clerk’s duty to remove a guardian or to take other action sufficient to protect the ward’s interests in the following cases:”; redesignated former subdivisions (c)(1) through (c)(9) as (b)(8) through (b)(16); and added subdivision (b)(17).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under former G.S. 33-9 and prior law.

Testamentary guardian ought not to be removed without a showing of such waste, insolvency, or misconduct that the ward will be unable to recover the balance due on the final settlement. Sanderson v. Sanderson, 79 N.C. 369 , 1878 N.C. LEXIS 72 (1878).

Personal Use of Ward’s Funds. —

The use by a guardian of the funds of his ward for his own use is sufficient to warrant his removal. Ury v. Brown, 129 N.C. 270 , 40 S.E. 4, 1901 N.C. LEXIS 67 (1901).

Showing Required for Removal of Legal Guardian. —

A legal guardian of a child’s person, unlike a mere custodian, is not removable for a mere change of circumstances; unfitness or neglect of duty must be shown. In re Williamson, 77 N.C. App. 53, 334 S.E.2d 428, 1985 N.C. App. LEXIS 4049 (1985).

Subsection (b)(7) authorizes the removal of a guardian where there is a showing of any potential for conflict between the interests of the ward and those of the guardian. In re Estate of Armfield, 113 N.C. App. 467, 439 S.E.2d 216, 1994 N.C. App. LEXIS 109 (1994).

Order changing the guardianship of a protected person was proper because both the clerk and the trial court applied the correct standard to the petition for removal of a guardian, and the appointment of a substitute guardian under G.S. 35A-1290(a): the better care and maintenance of the ward. Thomas v. Birchard, 183 N.C. App. 480, 644 S.E.2d 608, 2007 N.C. App. LEXIS 1102 (2007).

Reversing an assistant clerk’s order removing a guardian of an estate and trustee under a special needs trust for breach of fiduciary duty was error where the appropriate standard of review was whether the assistant clerk committed an error of law, the unchallenged findings of fact showed that the guardian and trustee had spent more than 90 percent of the monies that had been deposited in the trust for purposes for which he received some, if not all, of the benefit, and thus, he was removed based on waste and mismanagement of the assets committed to his care. In re Estate of Skinner, 370 N.C. 126 , 804 S.E.2d 449, 2017 N.C. LEXIS 692 (2017).

The words “might tend” in subsection (b)(7) established a minimal showing of possible conflicting interest for the removal of a guardian. In re Estate of Armfield, 113 N.C. App. 467, 439 S.E.2d 216, 1994 N.C. App. LEXIS 109 (1994).

G.S. 1-276 [see now G.S. 1-301.1 et seq.] Is Inapplicable to Removals. —

Appeals under G.S. 1-276 [see now G.S. 1-301.1 et seq.] are confined to civil actions and special proceedings. The decisions are plenary that the removal of a guardian is neither. In re Simmons, 266 N.C. 702 , 147 S.E.2d 231, 1966 N.C. LEXIS 1424 (1966).

Appellate Jurisdiction of Superior Court over Removals Is Derivative. —

In the appointment and removal of guardians, the appellate jurisdiction of the superior court is derivative, and appeals present for review only errors of law committed by the clerk. In re Simmons, 266 N.C. 702 , 147 S.E.2d 231, 1966 N.C. LEXIS 1424 (1966).

A ward may not bring action in superior court by next friend to remove guardian appointed by the clerk, and for the appointment of another guardian, the superior court in such instance being without jurisdiction. Moses v. Moses, 204 N.C. 657 , 169 S.E. 273, 1933 N.C. LEXIS 226 (1933).

Under Former Law. —

As to removal of guardian by county court, see Bray v. Brumsey, 5 N.C. 227 , 1809 N.C. LEXIS 4 (1809); Cooke v. Beale, 33 N.C. 36 , 1850 N.C. LEXIS 9 (1850).

§ 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 of the ward or constitutes a risk of substantial injury to the ward’s estate. In all cases where the letters of a guardian are revoked, the clerk may, pending the resolution of any controversy in respect to such removal, make such interlocutory orders and decrees as the clerk finds necessary for the protection of the ward or the ward’s estate or the other party seeking relief by such revocation.

History. 1987, c. 550, s. 1; 2004-203, s. 31(c).

Effect of Amendments.

Session Laws 2004-203, s. 31(c), effective August 17, 2004, added “Emergency removal” in the section heading; and added the first sentence.

§ 35A-1292. Resignation.

Any guardian who wishes to resign shall file a motion with the clerk setting forth the circumstances of the case. If a general guardian or guardian of the estate, at the time of making the application, also exhibits his final account for settlement, and if the clerk is satisfied that the guardian has fully accounted, the clerk may accept the resignation of the guardian and discharge him and appoint a successor guardian. The guardian so discharged and his sureties are still liable in relation to all matters connected with the guardianship before the discharge and shall continue to ensure that the ward’s needs are met until the clerk officially appoints a successor. The guardian shall attend the hearing to modify the guardianship, if physically able.
A general guardian who wishes to resign as guardian of the estate of the ward but continue as guardian of the person of the ward may apply for the partial resignation by petition as provided in subsection (a) of this section. If the general guardian also exhibits his final account as guardian of the estate for settlement, and if the clerk is satisfied that the general guardian has fully accounted as guardian of the estate, the clerk may accept the resignation of the general guardian as guardian of the estate, discharge him as guardian of the estate, and issue to him letters of appointment as guardian of the person, but the general guardian so discharged as guardian of the estate and his sureties are still liable in relation to all matters connected with the guardianship of the estate before the discharge.

History. 1987, c. 550, s. 1; 2012-151, s. 12(d).

Cross References.

As to final account by the resigning guardian, see G.S. 35A-1292 .

As to resignation of trustees, see G.S. 36A-22 et seq.

Effect of Amendments.

Session Laws 2012-151, s. 12(d), effective July 12, 2012, in subsection (a), substituted “shall file a motion with the clerk” for “may apply in writing to the clerk” in the first sentence, divided the former second sentence into the present second and third sentences, added “and shall continue to ensure that the ward’s needs are met until the clerk officially appoints a successor” to the end of the third sentence, added the last sentence, and made minor punctuation and stylistic changes.

CASE NOTES

Editor’s Note. —

The case cited below was decided under former law.

Liability Continues. —

Where permission is given to a guardian by the judge of probate to file an ex parte final account and turn over his guardianship to another, he is not thereby discharged from liabilities connected with his trust and arising before such resignation. He is still bound to account with the ward, or the succeeding guardian, when so required. Luton v. Wilcox, 83 N.C. 20 , 1880 N.C. LEXIS 7 (1880).

§ 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 initial appointment of a guardian.

History. 1987, c. 550, s. 1.

Editor’s Note.

§ 35A-1294. Estates without guardians.

Whenever a general guardian or guardian of the estate is removed, resigns, or stops serving without making a full and proper accounting, the successor guardian, or the clerk if there is no successor guardian, shall initiate a proceeding to compel an accounting. The surety or sureties on the previous guardian’s bond shall be served with notice of the proceeding.
If no successor guardian has been appointed, the clerk may act as receiver or appoint some discreet person as a receiver to take possession of the ward’s estate, to collect all moneys due the ward, and to secure, lend, invest, or apply the same for the benefit and advantage of the ward, under the direction of the clerk until a successor guardian is appointed. The accounts of the receiver shall be returned, audited, and settled as the clerk may direct. The receiver shall be allowed such amounts for his time, trouble, and responsibility as seem to the clerk reasonable and proper. Such receivership may continue until a suitable guardian can be appointed.
When another guardian is appointed, he may apply by motion, on notice, to the clerk for an order directing the receiver to pay over all the money, estate, and effects of the ward. If no such guardian is appointed, the ward shall have the same remedy against the receiver on becoming age 18 or otherwise emancipated if the ward is a minor or on being restored to competence if the ward is an incompetent person. In the event of the ward’s death, his executor, administrator, or collector, and the heir or personal representative of the ward shall have the same remedy against the receiver.

History. 1987, c. 550, s. 1.

Cross References.

As to receivers, see G.S. 1-501 et seq.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former law.

The receiver does not have the powers of a guardian, but acts under the control of the court until another guardian is appointed. Temple v. Williams, 91 N.C. 82 , 1884 N.C. LEXIS 22 (1884).

Liability of Receiver. —

As a general rule, a receiver is responsible for his own neglect only, and is protected when he acts in entire good faith. Collins v. Gooch, 97 N.C. 186 , 1 S.E. 653, 1887 N.C. LEXIS 131 (1887).

Liability of Receiver — Similar to Guardian’s. —

When a receiver is appointed to take charge of an infant’s estate who has no guardian, and is directed to lend out the money and pay the income over to the ward, he will be held to the same accountability as a guardian. Collins v. Gooch, 97 N.C. 186 , 1 S.E. 653, 1887 N.C. LEXIS 131 (1887).

Liability for Failure of Bank. —

A receiver may keep money in a bank as a safe place of deposit, or may use the bank as a means of transmitting money to distant places, and if he uses reasonable diligence, he will not be held liable if the bank fails. Collins v. Gooch, 97 N.C. 186 , 1 S.E. 653, 1887 N.C. LEXIS 131 (1887).

Where a receiver was appointed to take charge of an infant’s estate and invest the same, and report to the court annually, and he deposited a portion of the money in a bank in another state to his credit as receiver, on which deposit he was paid interest by the bank, which afterwards failed, it was held that the receiver was liable for the loss, as he had failed to report to the court the manner in which he had invested the infant’s estate, although he had acted in the best faith. Collins v. Gooch, 97 N.C. 186 , 1 S.E. 653, 1887 N.C. LEXIS 131 (1887).

Liability on Official Bond of Clerk. —

When the clerk of the superior court is appointed receiver of a minor’s estate under this section, he takes and holds the funds by virtue of his office as clerk, and his sureties upon his official bond as such officer are liable for any failure of duty on his part in that respect. Boothe v. Upchurch, 110 N.C. 62 , 14 S.E. 642, 1892 N.C. LEXIS 11 (1892). See State ex rel. Rogers v. Odom, 86 N.C. 432 , 1882 N.C. LEXIS 221 (1882).

The sureties on the clerk’s official bond are liable for any breach of his duties as receiver. Waters v. Melson, 112 N.C. 89 , 16 S.E. 918, 1893 N.C. LEXIS 170 (1893).

Action Against Receiver. —

It is not necessary to obtain leave of the court before commencing an action for failure of the clerk to fulfill his duty when appointed receiver under former section. Boothe v. Upchurch, 110 N.C. 62 , 14 S.E. 642, 1892 N.C. LEXIS 11 (1892).

Action Against Receiver — Burden of Proof. —

The burden is upon a receiver and his sureties to show that he used due diligence in investing the money in his hands. Waters v. Melson, 112 N.C. 89 , 16 S.E. 918, 1893 N.C. LEXIS 170 (1893).

Settlement Not Conclusive Against Ward. —

A settlement made with a receiver appointed under former section, even if had under direction of the court, is not conclusive against the ward, but only raises a presumption that the account and settlement are correct. Such presumption may be disproved. Temple v. Williams, 91 N.C. 82 , 1884 N.C. LEXIS 22 (1884).

§ 35A-1295. Termination of guardianship.

Every guardianship shall be terminated and all powers and duties of the guardian provided in Article 9 of this Chapter shall cease when the ward:
1. Ceases to be a minor as defined in G.S. 35A-1202(12),
2. Is adjudicated to be restored to competency pursuant to the provisions of G.S. 35A-1130 , or
3. Dies.
Notwithstanding subsection (a), a guardian of the estate or a general guardian is responsible for all accountings required by Article 10 of this Chapter until the guardian is discharged by the clerk.

History. 1989, c. 473, s. 31.

CASE NOTES

Guardian Not Authorized To Continue Action. —

§§ 35A-1296 through 35A-1300.

Reserved for future codification purposes.

Subchapter III. Management Of Ward’s Estate.

Article 14. Sale, Mortgage, Exchange or Lease of Ward’s Estate.

§ 35A-1301. Special proceedings to sell, exchange, mortgage, or lease.

Whenever used herein, the word “guardian” shall be construed to include general guardian, guardian of the estate, ancillary guardian, next friend, guardian ad litem, or commissioner of the court acting pursuant to this Article, but not a guardian who is guardian of the person only; and the word “mortgage” shall be construed to include deeds of trust.
A guardian may apply to the clerk, by verified petition setting forth the facts, to sell, mortgage, exchange, or lease for a term of more than three years, any part of his ward’s real estate, and such proceeding shall be conducted as in other cases of special proceedings. The clerk, in his discretion, may direct that the next of kin or presumptive heirs of the ward be made parties to such proceeding. The clerk may order a sale, mortgage, exchange, or lease to be made by the guardian in such way and on such terms as may be most advantageous to the interest of the ward, upon finding by satisfactory proof that:
1. The ward’s interest would be materially promoted by such sale, mortgage, exchange, or lease, or
2. The ward’s personal estate has been exhausted or is insufficient for his support and the ward is likely to become chargeable on the county, or
3. A sale, mortgage, exchange, or lease of any part of the ward’s real estate is necessary for his maintenance or for the discharge of debts unavoidably incurred for his maintenance, or
4. Any part of the ward’s real estate is required for public purposes, or
5. There is a valid debt or demand against the estate of the ward; provided, when an order is entered under this subdivision, (i) it shall authorize the sale of only so much of the real estate as may be sufficient to discharge such debt or demand, and (ii) the proceeds of sale shall be considered as assets in the hands of the guardian for the benefit of creditors, in like manner as assets in the hands of a personal representative, and the same proceedings may be had against the guardian with respect to such assets as might be taken against an executor, administrator or collector in similar cases.
  The order shall specify particularly the property thus to be disposed of, with the terms of leasing or sale or exchange or mortgage, and shall be entered at length on the records of the court. The guardian may not mortgage the property of his ward for a term of years in excess of the term fixed by the court in its order.
In the case of a ward who is a minor, no sale, mortgage, exchange, or lease under this Article shall be made until approved by the superior court judge, nor shall the same be valid, nor any conveyance of the title made, unless confirmed and directed by the judge, and the proceeds of the sale, mortgage, exchange, or lease shall be exclusively applied and secured to such purposes and on such trusts as the judge shall specify.
All petitions filed under this section wherein an order is sought for the sale, mortgage, exchange, or lease of the ward’s real estate shall be filed in the county in which all or any part of the real estate is situated.
The procedure for a sale pursuant to this section shall be as provided by Article 29A of Chapter 1 of the General Statutes.
Nothing herein contained shall be construed to divest the court of the power to order private sales as heretofore ordered in proper cases.
On and after June 1, 1973, no sales of property belonging to minors or incompetent persons prior to that date by next friend, guardian ad litem, or commissioner of the court regular in all other respects shall be declared invalid nor shall any claim or defense be asserted on the grounds that said sale was not made by a duly appointed guardian as provided herein or on the grounds that said minor or incompetent person was not represented by a duly appointed guardian.

History. 1987, c. 550, s. 1; 1989, c. 473, s. 6.

Cross References.

For the Uniform Custodial Trust Act, see G.S. 33B-1 et seq.

As to release of land condemned under eminent domain, see G.S. 40A-30 .

As to procedure for sale of remainders, see G.S. 41-11 .

Legal Periodicals.

For 1984 survey, “North Carolina Court of Appeals Recognizes Wrongful Birth and Wrongful Life Claims,” see 63 N.C.L. Rev. 1327 (1985).

CASE NOTES

Analysis

I. General Consideration
II. Payment of Debts or Demands Against Estate

I.General Consideration

Editor’s Note. —

Most of the cases cited below were decided under former G.S. 33-31 and prior law.

Not Applicable to Settlement or Partition. —

Former section does not apply either to the settlement of estates or to partition. Clark v. Carolina Homes, Inc., 189 N.C. 703 , 128 S.E. 20, 1925 N.C. LEXIS 385 (1925).

Jurisdiction of Court. —

The superior courts have authority in all proper cases to direct a sale of the property of infants, both real and personal, for their benefit and advantage. Williams v. Harrington, 33 N.C. 616 , 1850 N.C. LEXIS 130 (1850); Ex parte Dodd, 62 N.C. 97 , 1867 N.C. LEXIS 10 (1867); Sutton v. Schonwald, 86 N.C. 198 , 1882 N.C. LEXIS 174 (1882); Morris v. Gentry, 89 N.C. 248 , 1883 N.C. LEXIS 226 (1883); Tate v. Mott, 96 N.C. 19 , 2 S.E. 176, 1887 N.C. LEXIS 6 (1887).

Clerk and Court Have Concurrent Jurisdiction. —

By former section the clerk and court in term have concurrent jurisdiction in the manner of ordering a sale of infants’ lands upon petition of their guardian. Barcello v. Hapgood, 118 N.C. 712 , 24 S.E. 124, 1896 N.C. LEXIS 122 (1896).

Clerk’s Jurisdiction Is Statutory. —

A clerk of the superior court has no jurisdiction with respect to infants or with respect to property, real or personal, of infants, except such as in conferred by statute. Wilson v. Pemberton, 266 N.C. 782 , 147 S.E.2d 217, 1966 N.C. LEXIS 1446 (1966).

Petition Signed by Person Not a Qualified Guardian Confers No Jurisdiction on Clerk. —

A clerk of the superior court has jurisdiction to order the sale of a ward’s lands only upon petition verified by the duly appointed and qualified guardian of the ward, and where such petition is filed and signed by a person purporting to act as guardian, but who had not been appointed guardian and had not qualified by filing bond, the petition confers no jurisdiction on the clerk. Buncombe County v. Cain, 210 N.C. 766 , 188 S.E. 399, 1936 N.C. LEXIS 221 (1936).

Petition for Authority to Execute Deeds. —

Trustee, while serving as the individual’s guardian, could have petitioned the clerk for the authority to execute the deeds, but what the trustee could not was what she did here: sign deeds pursuant to a power of attorney that was executed well after the individual was adjudicated incompetent. O'Neal v. O'Neal, 254 N.C. App. 309, 803 S.E.2d 184, 2017 N.C. App. LEXIS 493 (2017).

Purchaser at Sale Acquires No Title Adverse to Infant. —

A purchaser of an infant’s property at a sale made under an order which is void because the clerk who made the order had no jurisdiction of the proceeding in which the order was made, acquires no right, title, interest, or estate in said property, adverse to the infant. Buncombe County v. Cain, 210 N.C. 766 , 188 S.E. 399, 1936 N.C. LEXIS 221 (1936).

When Prior Court Approval of Expenditures Required. —

Compliance with Statutory Requirements Presumed. —

Although former section must be strictly complied with, where a guardian has applied for permission to mortgage her wards’ land, and the clerk has entered an order therefor, which order has been approved by the court, there is a presumption that the statutory requirements have been met. Quick v. Federal Land Bank, 208 N.C. 562 , 181 S.E. 746, 1935 N.C. LEXIS 80 (1935).

The power of a guardian to make disposition of his ward’s estate is very carefully regulated, and the sale is not allowed except by order of court, which order must have the supervision, approval and confirmation of the resident judge of the district or the judge regularly holding the courts of the district. Pike v. Wachovia Bank & Trust Co., 274 N.C. 1 , 161 S.E.2d 453, 1968 N.C. LEXIS 730 (1968).

Trial court erred by granting the property buyer summary judgment because the homeowner was adjudicated incompetent in June 2018, her daughter sold the home without an order of the court authorizing the sale on September 20, 2019, and a genuine dispute existed regarding the daughter’s authority to sell the home. Leary v. Anderson, 280 N.C. App. 46, 866 S.E.2d 796, 2021- NCCOA-560, 2021 N.C. App. LEXIS 574 (2021).

Proof Required. —

Former section contemplates that, in addition to the verified petition of the guardian, there shall be required other satisfactory proof of the truth of the matter alleged. In re Propst, 144 N.C. 562 , 144 N.C. 563 , 57 S.E. 342, 1907 N.C. LEXIS 185 (1907).

The “satisfactory proof” required under former section must be some proof in addition to the guardian’s petition and must show the necessity for the proposed sale. In re Thomas, 290 N.C. 410 , 226 S.E.2d 371, 1976 N.C. LEXIS 1085 (1976).

Appraisal Value. —

Guardian complied with the requirements of G.S. 35A-1301(b) in the sale of the ward’s properties because the guardian was not statutorily required to obtain an appraisal value nor did the superior court request such documentation prior to the approval of the sales. Further, the comparative market analysis used by the guardian in valuing the property was an acceptable method in North Carolina. Clay v. Monroe, 189 N.C. App. 482, 658 S.E.2d 532, 2008 N.C. App. LEXIS 645 (2008).

Sale May Be Private. —

The sale by order of the court may be either public or private. Former G.S. 33-21 does not apply when the sale is by order of court. Barcello v. Hapgood, 118 N.C. 712 , 24 S.E. 124, 1896 N.C. LEXIS 122 (1896).

Title at Unauthorized Private Sale. —

A guardian, having offered at public sale the land of his wards in accordance with an order of the court, and having failed to sell for want of a bid at a fair price, subsequently sold the land at private sale upon terms approved by the court. It was held that the purchaser at such private sale obtained a good title. Rowland v. Thompson, 73 N.C. 504 , 1875 N.C. LEXIS 103 (1875).

The court may sell the land of minors for better investment, when they are properly represented before the court. Hutchinson v. Hutchinson, 126 N.C. 671 , 36 S.E. 149, 1900 N.C. LEXIS 292 (1900).

When Foreign Guardian May Sell. —

Where a foreign guardian has complied with the provisions of former G.S. 33-48 and former G.S. 33-49 which authorize him to withdraw the estate of his wards to the place of their residence and to a court of foreign jurisdiction, he may, in the same proceedings, and incident thereto, have the real property of his wards sold and converted into money in conformity with the provisions of former section, when the wards are represented therein by their next friend, and it is made to appear that their interests will be promoted thereby, etc. Cilley v. Geitner, 183 N.C. 528 , 111 S.E. 866, 1922 N.C. LEXIS 309 (1922).

As to sale of contingent interests, see Smith v. Witter, 174 N.C. 616 , 94 S.E. 402, 1917 N.C. LEXIS 153 (1917).

Guardian Cannot Purchase. —

It is well settled that a guardian cannot purchase at his own sale, and that all such purchases may be treated as invalid, at the option of the wards, even when no unfairness in the sale and purchase has been shown. But this does not apply to a sale made by a master. Patton v. Thompson, 55 N.C. 285 , 1855 N.C. LEXIS 212 (1855); Lee v. Howell, 69 N.C. 200 , 1873 N.C. LEXIS 213 (1873).

When Guardian Liable. —

Where a guardian obtains a decree for the sale of his ward’s land, it must appear, in order to make him liable for any loss in consequence of such sale, that he wilfully practiced a deception on the court by false allegations and false evidence, or by industriously concealing material facts. Harrison v. Bradley, 40 N.C. 136 , 1847 N.C. LEXIS 111 (1847).

No Liability on Implied Warranty of Authority. —

A guardian who contracts to convey the property of his ward is not liable on an implied warranty of authority. Pike v. Wachovia Bank & Trust Co., 274 N.C. 1 , 161 S.E.2d 453, 1968 N.C. LEXIS 730 (1968).

A guardian may not be authorized to join with the life tenant in executing a mortgage on lands in which his wards own the remainder in order to refund notes executed by the life tenant representing a part of the moneys expended by the life tenant in making permanent improvements upon the land, since the remaindermen being in no way liable for the sums expended by the life tenant, the execution of the mortgage could not be to the interest of the remaindermen. Hall v. Hall, 219 N.C. 805 , 15 S.E.2d 273, 1941 N.C. LEXIS 152 (1941).

Mortgage Valid in Part. —

Under the presumption that the provisions of former section were followed, mortgage executed by guardian was held valid as to funds used for permanent improvements on land, but void as to funds used to purchase livestock. Quick v. Federal Land Bank, 208 N.C. 562 , 181 S.E. 746, 1935 N.C. LEXIS 80 (1935).

Court May Authorize Lease Extending Beyond Period of Minority. —

Since the superior courts in proper instances have authority to order a sale of infants’ real estate and to order and approve execution of a mortgage on same by the guardian for a period exceeding the minority of the wards, such statutory power, together with the inherent jurisdiction of courts of equity over the estates of infants, give courts of equity plenary jurisdiction to order and empower a guardian to execute a lease on the real estate belonging to his wards for a period exceeding the guardianship or the minority of the wards, upon its findings that such would be to the best interest of the infant wards. Coxe v. Charles Stores Co., 215 N.C. 380 , 1 S.E.2d 848, 1939 N.C. LEXIS 267 (1939).

Confirmation of Sale. —

While a formal direction to make title is not always necessary a confirmation of the sale cannot be dispensed with. In re Dickerson, 111 N.C. 108 , 15 S.E. 1025, 1892 N.C. LEXIS 130 (1892).

Where an order confirming a sale of lands for partition does not provide for the disbursement of the funds, and the sum received in cash is properly paid into court and properly disbursed to the parties, the share of the minors therein being less than $100 and being paid to their mother for their benefit, under former G.S. 2-53 (see now G.S. 7A-111 ), the sale was not void. Ex parte Huffstetler, 203 N.C. 796 , 167 S.E. 65, 1933 N.C. LEXIS 425 (1933).

Order of Sale Must Be Approved. —

The power of a guardian to make disposition of his ward’s real estate is very carefully regulated and a sale is not allowed except on petition filed, and the order must in all cases have the supervision and approval of the judge. Morton v. Pine Lumber Co., 178 N.C. 163 , 100 S.E. 322, 1919 N.C. LEXIS 414 (1919).

Approval of Order by Emergency Judge. —

An emergency judge has no power to approve and confirm an order of the clerk for the sale or mortgage of lands by a guardian when such emergency judge is not holding court in the county. Ipock v. North Carolina Joint Stock Land Bank, 206 N.C. 791 , 175 S.E. 127, 1934 N.C. LEXIS 311 (1934).

Approval of Order Nunc Pro Tunc. —

Where a guardian executed a note and deed of trust under an order made by the clerk without the approval of the judge, and the judge later approved the order nunc pro tunc, the defect was cured so as to come within former section. Powell v. Armour Fertilizer Works, 205 N.C. 311 , 170 S.E. 916, 1933 N.C. LEXIS 541 (1933); Ipock v. North Carolina Joint Stock Land Bank, 206 N.C. 791 , 175 S.E. 127, 1934 N.C. LEXIS 311 (1934).

When Sale May Be Set Aside. —

Where the court, without taking any means to ascertain the necessity for a sale, directed it to be made, and that it should be “first advertised at the courthouse and three other public places,” and no bid be received less than $125, and that the guardian should make conveyance, it was held that it was not error to set aside the sale and direct another. In re Dickerson, 111 N.C. 108 , 15 S.E. 1025, 1892 N.C. LEXIS 130 (1892).

Title Not Affected by Reversal of Decree. —

Where land of an infant was sold under a decree of the court upon petition of a guardian, the title acquired is not rendered invalid by the reversal of the decree on account of irregularity in the proceeding of which the purchaser had no notice. Sutton v. Schonwald, 86 N.C. 198 , 1882 N.C. LEXIS 174 (1882).

Prior Debts of Mentally Disordered Person. —

As to debts contracted prior to inquisition of incompetence, see Blake v. Respass, 77 N.C. 193 , 1877 N.C. LEXIS 53 (1877); Adams v. Thomas, 81 N.C. 296 , 1879 N.C. LEXIS 181 (1879).

As to sale of contingent interest, see Smith v. Witter, 174 N.C. 616 , 94 S.E. 402, 1917 N.C. LEXIS 153 (1917).

As to satisfaction of judgment, see Blake v. Respass, 77 N.C. 193 , 1877 N.C. LEXIS 53 (1877).

II.Payment of Debts or Demands Against Estate

Court should first ascertain that there are debts due from the ward, which render the sale of his property expedient, and should also select the part or parts of the property which can be disposed of with least injury to the ward. Leary v. Fletcher, 23 N.C. 259 , 1840 N.C. LEXIS 115 (1840).

Sufficiency of Order. —

An order authorizing a guardian, under certain circumstances, to sell the land of his ward, must first show that it was ascertained that there were debts due from the ward, and then specify what particular land is to be sold for their payment. Spruill v. Davenport, 48 N.C. 42 , 1855 N.C. LEXIS 108 (1855).

Sufficient Specification of Land. —

An order “to sell the land of the ward named in the petition, adjoining the lands of A, B, and others, containing about 110 acres,” it not appearing that the ward had other land, was held a sufficient specification of the land under the statute. Pendleton v. Trueblood, 48 N.C. 96 , 1855 N.C. LEXIS 127 (1855).

Insufficient Specification of Land. —

An order that the guardian sell the land of his ward, or so much thereof as will be sufficient to discharge his debts, is fatally defective and void, and vests no title in those who bought at the sale. Leary v. Fletcher, 23 N.C. 259 , 1840 N.C. LEXIS 115 (1840); Ducket v. Skinner, 33 N.C. 431 , 1850 N.C. LEXIS 92 (1850).

Sale Void Where Debts Not Shown. —

A sale of a ward’s land on petition of the guardian to pay debts is void where it is not made to appear that the court passed on and ascertained the fact that there were debts against the ward’s estate. Coffield v. McLean, 49 N.C. 15 , 1856 N.C. LEXIS 7 (1856).

Amount of the debts, or to whom due, need not be set forth in the order. Spruill v. Davenport, 48 N.C. 42 , 1855 N.C. LEXIS 108 (1855); Pendleton v. Trueblood, 48 N.C. 96 , 1855 N.C. LEXIS 127 (1855).

Proceeds Subject to Attachment. —

Money from the sale of land which belonged to wards is subject to attachment in the hands of the clerk after the confirmation of the sale. LeRoy v. Jacobosky, 136 N.C. 443 , 48 S.E. 796, 1904 N.C. LEXIS 290 (1904).

Priority in Payment of Debts. —

When a guardian of an infant, under an order of court, sells his ward’s land for payment of the debts of the ancestor, he is bound to observe the same priority in the payment of the debts as an administrator or executor in applying the personal assets. Merchant v. Sanderlin, 25 N.C. 501 , 1843 N.C. LEXIS 52 (1843).

Sale of Incompetent’s Property. —

See Howard v. Thompson, 30 N.C. 367 , 1848 N.C. LEXIS 85 (1848).

§ 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 sell, mortgage, or exchange all or part of his ward’s real estate, and such real estate is situated in a county other than the county in which the guardian is appointed and qualified, the guardian shall first apply to the clerk of the county in which he was appointed and qualified for an order showing that the sale, mortgage, or exchange of his ward’s real estate is necessary or that the ward’s interest would be materially promoted thereby. The clerk to whom such application is made shall hear and pass upon the same and enter his findings and order as to whether said sale, mortgage, or exchange is necessary or would materially promote the ward’s interest, and said order and findings shall be certified to the clerk of the county in which the ward’s land, or some part of it, is located and before whom any petition or application is filed for the sale, mortgage, or exchange of said land. Such findings and orders so certified shall be considered by the court along with all other evidence and circumstances in passing upon the petition in which an order is sought for the sale, mortgage, or exchange of said land. In the case of a ward who is a minor, before such findings and orders shall become effective the same shall be approved by the superior court judge holding the courts of the district or by the resident judge.

History. 1987, c. 550, s. 1.

§ 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 first instance it may be liable, the final decree shall declare and set apart a portion of the personal or real estate thus saved, of value equal to the real and personal estate sold, as property exchanged for that sold; and in all sales by guardians whereby real is substituted by personal, or personal by real property, the beneficial interest in the property acquired shall be enjoyed, alienated, or devised and shall descend and be distributed, as by law the property sold might and would have been had it not been sold, until it be reconverted from the character thus impressed upon it by some act of the owner and restored to its character proper.

History. 1987, c. 550, s. 1; 2011-284, s. 38.

Effect of Amendments.

Session Laws 2011-284, s. 38, effective June 24, 2011, substituted “alienated, or devised” for “alienated, devised or bequeathed” near the end.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 33-32 and prior law.

Proceeds of Sale of Land Retain Character of Real Estate. —

When an undivided interest of an insane person in land was sold by his guardian under court order, the proceeds of sale retained the character of real estate for the purpose of devolution on his death intestate while still insane, and would go as his interest in the land would had it not been sold. Brown v. Cowper, 247 N.C. 1 , 100 S.E.2d 305, 1957 N.C. LEXIS 551 (1957).

The general rule is that where the real estate of an incompetent is sold under a statute or by order of court, the proceeds of sale remain realty for the purpose of devolution on his death intestate while still an incompetent. Grant v. Banks, 270 N.C. 473 , 155 S.E.2d 87, 1967 N.C. LEXIS 1381 (1967) (commented on in 46 N.C.L. Rev. 687 (1968)) .

Purchase Back of Identical Real Property Sold. —

In view of the general rule as to the sale of an insane person’s real property under a court order, and in view of this section, a conveyance of real property by the guardian of an insane person and the purchase back of the identical real property at a foreclosure sale by the use of unpaid purchase money notes would not break the line of descent. Brown v. Cowper, 247 N.C. 1 , 100 S.E.2d 305, 1957 N.C. LEXIS 551 (1957).

Exchange of Real Property for Real Property. —

Former G.S. 33-32 does not in explicit words refer to the case where real property is substituted for real property. However, considering the general rule as to the sale of an insane person’s real property under a court order, and the purpose and intent of former G.S. 33-32, an undivided interest in land conveyed to an insane person in exchange for his interest in other tracts of land transmitted to him by descent from his mother would, upon his death intestate and continuously insane since before the appointment of his guardian until his death, nothing else appearing, descend as by law his undivided interest in the other tracts would descend, if his undivided interest in the other tracts of land had not been sold, conveyed and exchanged. Brown v. Cowper, 247 N.C. 1 , 100 S.E.2d 305, 1957 N.C. LEXIS 551 (1957).

Husband Who Received Proceeds Had No Right to Complain of Procedure. —

It is the duty of the court, when the real estate of an infant is sold under its decree, to direct the proceeds to be held as real estate, yet the husband of such infant, who has received the proceeds from his wife’s guardian, has no right to complain that such course has not been adopted. Harrison v. Bradley, 40 N.C. 136 , 1847 N.C. LEXIS 111 (1847).

Where infant’s land was sold for her benefit and she married and died before becoming of age, it was held that the money retained the character of real property. Wood v. Reeves, 58 N.C. 271 , 1859 N.C. LEXIS 291 (1859).

§ 35A-1304. [Repealed]

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 purpose, the guardian, with the consent of the clerk, may annually dispose of or use so much of the lightwood, and box or rent so many pine trees, or sell so much of the timber on the same, as may raise enough to pay the taxes and other duties thereon, and no more. In addition, the guardian, with the consent of the clerk, may annually dispose of, use, or sell so much of the timber as is necessary to maintain good forestry practices.

History. 1987, c. 550, s. 1.

CASE NOTES

Editor’s Note. —

The case cited below was decided under former law.

Sale without Authority. —

Where a guardian sold timber on the land of his ward without an order of the court (now consent of superior court clerk), and took a note for the purchase money, the maker of such note cannot set up the failure of the guardian to observe the statutory mandate. Evans v. Williamson, 79 N.C. 86 , 1878 N.C. LEXIS 20 (1878).

§ 35A-1306. Abandoned incompetent spouse.

A guardian of a married person found incompetent who has been abandoned, whether the guardian was appointed before or after the abandonment, may initiate a special proceeding before the clerk having jurisdiction over the ward requesting the issuance of an order authorizing the sale of the ward’s separate real property without the joinder of the abandoning spouse.
The ward’s spouse shall be served with notice of the special proceeding in accordance with G.S. 1A-1 , Rule 4.
If the clerk finds:
1. That the spouse of the ward has willfully and without just cause abandoned the ward for a period of more than one year; and
2. That the spouse of the ward has knowledge of the guardianship, or that the guardian has made a reasonable attempt to notify the spouse of the guardianship; and
3. That an order authorizing the sale of the separate real property of the ward is in the best interest of the ward;
  the clerk may issue such an order thereby barring the abandoning spouse from all right, title and interest in any of the ward’s separate real property sold pursuant to such an order.

History. 1987, c. 550, s. 1.

CASE NOTES

When Prior Court Approval of Expenditures Required. —

§ 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 was living with the incompetent spouse at the time of commitment shall, if he or she be in needy circumstances, have the right to bring a special proceeding before the clerk to sell the real property of the incompetent spouse, or so much thereof as is deemed expedient, and have the proceeds applied for support: Provided, that said proceeding shall be approved by the judge of the superior court holding the courts of the superior court district or set of districts as defined in G.S. 7A-41.1 where the said property is situated. When the deed of the commissioner appointed by the court, conveying the lands belonging to the incompetent spouse is executed, probated, and registered, it conveys a good and indefeasible title to the purchaser.

History. 1987, c. 550, s. 1; 1987 (Reg. Sess., 1988), c. 1037, s. 83; 1989, c. 473, s. 8.

CASE NOTES

Clerk of Superior Court Has Power to Determine Whether Spouse Should Be Granted Support. —

The clerk of superior court—after first ensuring that the estate is ample to meet the expenses of caring for the incompetent—has residual equitable power under Chapter 35A to examine the facts and circumstances of the case to determine whether the incompetent’s spouse should be granted support from her husband’s estate and the right to continue to live in his home; factors the clerk may consider include the size and condition of the estate, the present and future demands against it, and the spouse’s needs. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

The district court was not the proper forum in which to seek spousal support from the estate of an incompetent; the superior court is the only proper division to hear matters regarding the administration of incompetents’ estates; therefore, the incompetent’s spouse should have made her demand for support before the clerk of superior court either as a motion in the cause pursuant to G.S. 35A-1207 , or as a special proceeding for the sale of her husband’s property under this section. Cline v. Teich, 92 N.C. App. 257, 374 S.E.2d 462, 1988 N.C. App. LEXIS 1039 (1988).

§§ 35A-1308, 35A-1309.

Reserved for future codification purposes.

Article 15. Mortgage or Sale of Estates Held by the Entireties.

§ 35A-1310. Where one spouse or both incompetent; special proceeding before clerk.

In all cases where a husband and wife shall be seized of property as an estate by the entireties, and the wife or the husband or both shall be or become mentally incompetent to execute a conveyance of the estate so held, and the interest of said parties shall make it necessary or desirable that such property be mortgaged or sold, it shall be lawful for the mentally competent spouse and/or the guardian of the mentally incompetent spouse, and/or the guardians of both (where both are mentally incompetent) to file a petition with the clerk of the superior court in the county where the lands are located, setting forth all facts relative to the status of the owners, and showing the necessity or desirability of the sale or mortgage of said property, and the clerk, after first finding as a fact that either the husband or wife, or both, are mentally incompetent, shall have power to authorize the interested parties and/or their guardians to execute a mortgage, deed of trust, deed, or other conveyance of such property, provided it shall appear to said clerk’s satisfaction that same is necessary or to the best advantage of the parties, and not prejudicial to the interest of the mentally incompetent spouse. All petitions filed under the authority of this section shall be filed in the office of the clerk of the superior court of the county where the real estate or any part of same is situated.

History. 1935, c. 59, s. 1; 1945, c. 426, s. 5; c. 1084, s. 5; 1987, c. 550, s. 2.

Editor’s Note.

This Article is former Article 4 of Chapter 35, as recodified by Session Laws 1987, c. 550, s. 2.

Legal Periodicals.

For analysis of Article, see 13 N.C.L. Rev. 376 (1935).

For note on tenancy by the entirety in real property during marriage, see 47 N.C.L. Rev. 963 (1969).

CASE NOTES

When Prior Court Approval of Expenditures Required. —

§ 35A-1311. General law applicable; approved by judge.

The proceedings herein provided for shall be conducted under and shall be governed by laws pertaining to special proceedings, and it shall be necessary for any sale or mortgage or other conveyance herein authorized to be approved by a superior court judge who has jurisdiction pursuant to G.S. 7A-47.1 or G.S. 7A-48 in the district or set of districts as defined in G.S. 7A-41.1 wherein the property or any part of same is located.

History. 1935, c. 59, s. 2; 1945, c. 426, s. 6; 1987, c. 550, s. 2; 1987 (Reg. Sess., 1988), c. 1037, s. 84.

Cross References.

As to general law on special proceedings, see G.S. 1-393 et seq.

CASE NOTES

When Prior Court Approval of Expenditures Required. —

Sale May Be Authorized. —

Former G.S. 35-15 does not limit the court’s power in authorizing a mortgage. The court may authorize a sale. Perry v. Jolly, 259 N.C. 305 , 130 S.E.2d 654, 1963 N.C. LEXIS 565 (1963) (decided under G.S. 35-15, which was recodified as this section by Session Laws 1987, c. 550, s. 2).

Sale Transfers Right of Survivorship to Fund. —

A sale does not destroy or separate the interests of the tenants by entireties if one of the parties is incompetent. The right of survivorship is transferred to the fund. Perry v. Jolly, 259 N.C. 305 , 130 S.E.2d 654, 1963 N.C. LEXIS 565 (1963) (decided under G.S. 35-15, which was recodified as this section by Session Laws 1987, c. 550, s. 2).

§ 35A-1312. Proceeding valid in passing title.

Any mortgage, deed, or deed of trust executed under authority of this Article by a regularly conducted special proceeding as provided shall have the force and effect of passing title to said property to the same extent as a deed executed jointly by husband and wife, where both are mentally capable of executing a conveyance.

History. 1935, c. 59, s. 3; 1987, c. 550, s. 2.

§ 35A-1313. Clerk may direct application of funds; purchasers and mortgagees protected.

In all cases conducted under this Article it shall be competent for the court, in its discretion, to direct the application of funds arising from a sale or mortgage of such property in such manner as may appear necessary or expedient for the protection of the interest of the mentally incompetent spouse: Provided, however, this section shall not be construed as requiring a purchaser or any other party advancing money on the property to see to the proper application of such money, but such purchaser or other party shall acquire title unaffected by the provisions of this section.

History. 1935, c. 59, s. 4; 1987, c. 550, s. 2.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-17, which was recodified as this section by Session Laws 1987, c. 550, s. 2.

The discretion given the court by former G.S. 35-17 is limited to the protection of the incompetent’s interests. Perry v. Jolly, 259 N.C. 305 , 130 S.E.2d 654, 1963 N.C. LEXIS 565 (1963).

The power to dissolve the rights of survivorship incident to the entireties estate is not within the court’s discretion. Perry v. Jolly, 259 N.C. 305 , 130 S.E.2d 654, 1963 N.C. LEXIS 565 (1963).

§ 35A-1314. Prior sales and mortgages validated.

Any and all special proceedings under which estates by the entireties have been sold or mortgaged prior to March 5, 1935, under circumstances contemplated in this Article are hereby in all respects ratified and confirmed, provided that such proceeding or proceedings are otherwise regular and conformable to law.

History. 1935, c. 59, s. 5; 1987, c. 550, s. 2.

§§ 35A-1315 through 35A-1319.

Reserved for future codification purposes.

Article 16. Surplus Income and Advancements.

§ 35A-1320. [Repealed]

Repealed by Session Laws 1989, c. 473, s. 14.

Editor’s Note.

This Article is former Article 5 of Chapter 35, as recodified by Session Laws 1987, c. 550, s. 3.

§ 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 deceased child), and is possessed of an estate, real or personal, whose annual income is more than sufficient abundantly and amply to support himself, and to support, maintain and educate the members of his family, with all the necessaries and suitable comforts of life, it is lawful for the clerk of the superior court for the county in which such person has his residence to order from time to time, and so often as may be judged expedient, that fit and proper advancements be made, out of the surplus of such income, to any such child, or grandchild, not being a member of his family and entitled to be supported, educated and maintained out of the estate of such person. Whenever any incompetent person of full age, not being married and not having issue, be possessed, or his guardian be possessed for him, of any estate, real or personal, or of an income which is more than sufficient amply to provide for such person, it shall be lawful for the clerk of the superior court for the county in which such person resided prior to incompetency to order from time to time, and so often as he may deem expedient, that fit and proper advancements be made, out of the surplus of such estate or income, to his or her parents, brothers and sisters, or grandparents to whose support, prior to his incompetency, he contributed in whole or in part.

History. R.C., c. 57, s. 9; Code, s. 1677; Rev., s. 1900; C.S., s. 2296; Ex. Sess. 1924, c. 93; 1971, c. 528, s. 32; 1977, c. 725, s. 5; 1987, c. 550, s. 3.

Cross References.

As to payment of pension funds to dependent relatives of incompetent veterans, see G.S. 34-14.1 .

CASE NOTES

Editor’s Note. —

The cases cited below were decided under G.S. 35-20, which was recodified as this section by Session Laws 1987, c. 550, s. 3, and under former provisions.

History of former G.S. 35-20 through 35-27. —

See Ford v. Security Nat'l Bank, 249 N.C. 141 , 105 S.E.2d 421, 1958 N.C. LEXIS 432 (1958).

Home Purchased in Name of Incompetent for Use by Sister. —

The evidence tended to show that petitioner was the sister of an insane veteran, that prior to and after entering the army he assisted in her support, that he was unmarried and had no other dependents, that his guardian had on hand more than enough to amply provide for his support, and that petitioner was destitute and without means of support. It was held that the clerk of the superior court, with the approval of the resident judge or presiding judge, had the power, upon proper findings from the evidence, to order guardian to purchase a home in the name of the incompetent for the use of petitioner, and to advance petitioner a reasonable sum monthly for her support. Patrick v. Branch Banking & Trust Co., 216 N.C. 525 , 5 S.E.2d 724, 1939 N.C. LEXIS 34 (1939).

§ 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 himself with all the necessaries and suitable comforts of life and has no minor children nor immediate family dependent upon him for support, education or maintenance, such advancements may be made out of such excess of the principal of his estate to such child or grandchild of age for the better promotion or advancement in life or in business of such child or grandchild: Provided, that the order for such advancement shall be approved by the resident or presiding judge of the district who shall find the facts in said order of approval.

History. 1925, c. 136, s. 1; 1977, c. 725, s. 5; 1987, c. 550, s. 3.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-21, which was recodified as this section by Session Laws 1987, c. 550, s. 3.

Findings Sufficient to Support Order for Advancements. —

Finding to the effect that an incompetent was incurably insane, that his estate was greatly in excess of any needs for his support, hospitalization and maintenance, that his adult children were in dire financial need, and that advancements to them from their father’s estate under this section would operate for the better promotion and advancement in life of the children, support an order directing advancements to be made to the children out of the surplus estate of the incompetent. Ford v. Security Nat'l Bank, 249 N.C. 141 , 105 S.E.2d 421, 1958 N.C. LEXIS 432 (1958).

§ 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 and education of such as are under the age of 21 years and unmarried; and in all cases the sums ordered shall be paid to such persons as, in the opinion of the clerk, will most effectually execute the purpose of the advancement.

History. R.C., c. 57, s. 10; Code, s. 1678; Rev., s. 1901; C.S., s. 2297; 1987, c. 550, s. 3.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-22, which was recodified as this section by Session Laws 1987, c. 550, s. 3.

Evidence Showing Need and Proper Purpose for Advancements. —

Where the impoverished condition of an incompetent’s adult children and the adequacy of his estate were not challenged, and while the order for advancements did not restrict the use of the funds to the purchase of a home, the applicants had requested advancements for that purpose, it was held that the evidence demonstrated a need and a proper purpose for advancements, and was sufficient to support the findings and the judgment. Ford v. Security Nat'l Bank, 249 N.C. 141 , 105 S.E.2d 421, 1958 N.C. LEXIS 432 (1958).

§ 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 be entitled to a distributive share of his estate if he were then dead.

History. R.C., c. 57, s. 11; Code, s. 1679; Rev., s. 1902; C.S., s. 2298; 1977, c. 725, s. 5; 1987, c. 550, s. 3.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-23, which was recodified as this section by Session Laws 1987, c. 550, s. 3.

In a proceeding requesting an increase in the allowance to the dependent of a permanently insane veteran, all persons who would be entitled to a distributive share of the estate in case of death are necessary parties under this section. Patrick v. Branch Banking & Trust Co., 241 N.C. 76 , 84 S.E.2d 277, 1954 N.C. LEXIS 538 (1954).

§ 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 estate shall be distributed among his distributees in the same equal manner as if the advancements had been made by the person himself; and on his death every sum advanced to a child or grandchild shall be an advancement, and shall bear interest from the time it may be received.

History. R.C., c. 57, s. 12; Code, s. 1680; Rev., s. 1903; C.S., s. 2299; 1977, c. 725, s. 5; 1987, c. 550, s. 3.

§ 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 decree advancement to such of them as may most need the same, and may apportion the sum decreed in such amounts as are expedient and proper.

History. R.C., c. 57, s. 13; Code, s. 1681; Rev., s. 1904; C.S., s. 2300; 1925, c. 136, s. 2; 1987, c. 550, s. 3.

§ 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 they may have families, that it may be applied to their support and comfort; but any sum so advanced shall be regarded as an advancement to such persons.

History. R.C., c. 57, s. 14; Code, s. 1682; Rev., s. 1905; C.S., s. 2301; 1987, c. 550, s. 3.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-26, which was recodified as this section by Session Laws 1987, c. 550, s. 3.

Order Not Reversed Because Advancements Not Secured Against Waste. —

An order under former G.S. 35-21 would not be held erroneous for want of direction in the order securing the advancements from being wasted, where the finding that the advancements would operate for the better promotion in life of the children was supported by evidence, even though it might later turn out that the advancements were wasted. Ford v. Security Nat'l Bank, 249 N.C. 141 , 105 S.E.2d 421, 1958 N.C. LEXIS 432 (1958).

§ 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 shall be had in the superior court.

History. R.C., c. 57, s. 15; Code, s. 1683; Rev., s. 1906; C.S., s. 2302; 1987, c. 550, s. 3.

§ 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 judged by the clerk to be incapable, notwithstanding any lucid intervals, to make advancements with prudence and discretion.

History. R.C., c. 57, s. 16; Code, s. 1684; Rev., s. 1907; C.S., s. 2303; 1987, c. 550, ss. 3, 3.1.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-28, which was recodified as this section by Session Laws 1987, c. 550, s. 3.

Veterans Administration Is Proper Party to Proceeding. —

In a proceeding requesting an increase in the allowance of a permanently insane veteran, the Veterans Administration is a proper party under former G.S. 35-28 and G.S. 35-29 . Patrick v. Branch Banking & Trust Co., 241 N.C. 76 , 84 S.E.2d 277, 1954 N.C. LEXIS 538 (1954).

§ 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 of the same.

History. R.C., c. 57, s. 17; Code, s. 1685; Rev., s. 1908; C.S., s. 2304; 1987, c. 550, ss. 3, 3.2.

§§ 35A-1331 through 35A-1334.

Reserved for future codification purposes.

Article 17. Gifts from Income for Certain Purposes.

§ 35A-1335. Gifts authorized with approval of judge of superior court.

With the approval of the resident judge of the superior court of the district in which the guardian was appointed, upon a duly verified petition the guardian of a person judicially declared to be incompetent may, from the income of the incompetent, make gifts to the State of North Carolina, its agencies, counties or municipalities, or to the United States or its agencies or instrumentalities, or for religious, charitable, literary, scientific, historical, medical or educational purposes, or to individuals including the guardian. References in this Article to the “guardian” include any Trustee appointed by the court under prior law as fiduciary for the incompetent ward’s estate.

History. 1963, c. 111, s. 1; 1987, c. 550, s. 4; 1999-270, s. 1.

Editor’s Note.

This Article is former Article 5A of Chapter 35, as recodified by Session Laws 1987, c. 550, s. 4.

Legal Periodicals.

For comment on gifts by guardian from estate of incompetent ward, see 43 N.C.L. Rev. 616 (1965).

CASE NOTES

Editor’s Note. —

The cases cited below were decided under G.S. 35-29.1, which was recodified as this section by Session Laws 1987, c. 550, s. 4.

Article Limits Power of Trustee or Guardian to Make Gifts. —

Former Articles 5A, 5B, and 5C of Chapter 35 limit the power of a guardian or a trustee to make gifts of the character enumerated therein. He may do so only with the approval of the resident judge of the superior court of the county in which the guardian or trustee was appointed. To secure approval, the guardian or trustee must file a verified petition setting out what authority he wishes and the reasons justifying his request. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

Income or Corpus of Incompetent’s Estate Cannot Be Taken Except for His Support or Debts. —

A court of equity may not, either in the exercise of its inherent jurisdiction or with legislative sanction granted by former G.S. 35-29.1, 35-29.4, 35-29.5, 35-29.10, 35-29.11 and 35-29.16, authorize the taking of income or corpus of the estate of an incompetent for a purpose other than the incompetent’s own support and the discharge of the incompetent’s legal obligations. In re Kenan, 261 N.C. 1 , 134 S.E.2d 85, 1964 N.C. LEXIS 410 (1964).

Court May Not Authorize Gift Because It Believes Gift Should Be Made. —

To authorize a gift from an incompetent’s estate “if the court under all of the circumstances believes that such gift should be made,” would permit the court to do that which the incompetent had not done and would not do if sane. Such an order would amount to a taking of property in derogation of incompetent’s constitutional rights. In re Kenan, 261 N.C. 1 , 134 S.E.2d 85, 1964 N.C. LEXIS 410 (1964).

Proposed Act by Trustee Need Not Enhance Ward’s Estate. —

No court should authorize a guardian, or trustee, of an estate of an incompetent to act in a manner which will prove detrimental to the estate of his ward; but it does not follow that the proposed action must be one which benefits or enhances the estate of the ward. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

Gifts of Income or Principal May Be Authorized. —

While an incompetent’s property may not, either with legislative sanction or court order, be taken for charitable purposes notwithstanding the part not taken is ample for incompetent’s needs, it is nonetheless true that courts of equity have authorized the gift of a part of incompetent’s income or principal. In re Kenan, 261 N.C. 1 , 134 S.E.2d 85, 1964 N.C. LEXIS 410 (1964).

On Finding Incompetent Would Probably Have Made Gift if Sane. —

A court may authorize a fiduciary to make a gift of a part of the estate of an incompetent only on a finding, on a preponderance of the evidence, at a hearing of which interested parties have notice, that the incompetent, if then of sound mind, would make the gift. In re Kenan, 261 N.C. 1 , 134 S.E.2d 85, 1964 N.C. LEXIS 410 (1964); In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

What it is necessary to establish is that the act proposed by the trustee of an incompetent is that which it is probable the incompetent would himself have done, or as it is probable he would have acted for himself, if he were of sound mind. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

§ 35A-1336. Prerequisites to approval by judge of gifts for governmental or charitable purposes.

The judge shall not approve gifts from income for governmental or charitable purposes unless it appears to the judge’s satisfaction that all of the following apply:

After making the gifts and the payment of federal and State income taxes, the remaining income of the incompetent will be reasonable and adequate to provide for the support, maintenance, comfort and welfare of the incompetent and those legally entitled to support from the incompetent in order to maintain the incompetent and those dependents in the manner to which the incompetent and those dependents are accustomed and in keeping with their station in life.
Each donee is a donee to which a competent donor could make a gift, without limit as to amount, without incurring federal or State gift tax liability.
Each donee is a donee qualified to receive tax deductible gifts under federal and State income tax laws.
The aggregate of the gifts does not exceed the percentage of income fixed by federal law as the maximum deduction allowable for the gifts in computing federal income tax liability.

History. 1963, c. 111, s. 2; 1987, c. 550, s. 4; 1999-270, s. 2.

§ 35A-1336.1. Prerequisites to approval by judge of gifts to individuals.

The judge shall not approve gifts from income to individuals unless it appears to the judge’s satisfaction that both the following requirements are met:

After making the gifts and paying federal and State income taxes, the remaining income of the incompetent will be reasonable and adequate to provide for the support, maintenance, comfort, and welfare of the incompetent and those legally entitled to support from the incompetent in order to maintain the incompetent and those dependents in the manner to which the incompetent and those dependents are accustomed and in keeping with their station in life;
The judge determines that either:
1. The incompetent, prior to being declared incompetent, executed a paper-writing with the formalities required by the laws of North Carolina for the execution of a valid will, including a paper-writing naming as beneficiary a revocable trust created by the incompetent, and each donee is entitled to one or more specific devises, or distributions of specific amounts of money, income, or property under the paper-writing or the revocable trust or both or is a residuary devisee or beneficiary designated in the paper-writing or revocable trust or both; or
2. That so far as is known the incompetent has not, prior to being declared incompetent, executed a will which could be probated upon the death of the incompetent, and each donee is a person who would share in the incompetent’s estate, if the incompetent died contemporaneously with the signing of the order of the approval of the gifts; or
3. The donee is the spouse, parent, descendent of the incompetent, or descendant of the incompetent’s parent, and the gift qualifies either for the federal annual gift tax exclusion under section 2503(b) of the Internal Revenue Code or is a qualified transfer for tuition or medical expenses under section 2503(e) of the Internal Revenue Code.
  The judge may order that the gifts be made in cash or in specific assets and may order that the gifts be made outright, in trust, under the North Carolina Uniform Transfers to Minors Act, under the North Carolina Uniform Custodial Trust Act, or otherwise. The judge may also order that the gifts be treated as an advancement of some or all of the amount the donee would otherwise receive at the incompetent’s death.

History. 1999-270, s. 3; 2011-284, s. 39; 2013-91, s. 3(c).

Effect of Amendments.

Session Laws 2011-284, s. 39, effective June 24, 2011, in subdivision (2)a., deleted “legacies, bequests” following “specific” and “legatee” following “residuary.”

Session Laws 2013-91, s. 3(c), effective June 12, 2013, substituted “the gift qualifies either for the federal annual gift tax exclusion under section 2503(b) of the Internal Revenue Code or is a qualified transfer for tuition or medical expenses under section 2503(e) of the Internal Revenue Code” for “the amount of the gift does not exceed the federal annual gift tax exclusion” in sub-subdivision (2)c.

§ 35A-1337. Fact that incompetent had not previously made similar gifts.

The judge shall not withhold his approval merely because the incompetent, prior to becoming incompetent, had not made gifts to the same donees or other gifts similar in amount or type.

History. 1963, c. 111, s. 3; 1987, c. 550, s. 4.

§ 35A-1338. Validity of gift.

A gift made with the approval of the judge under the provisions of this Article shall be deemed a gift by the incompetent and shall be as valid in all respects as if made by a competent person.

History. 1963, c. 111, s. 4; 1987, c. 550, s. 4.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-29.4, which was recodified as this section by Session Laws 1987, c. 550, s. 4.

Income or Corpus of Incompetent’s Estate Cannot Be Taken Except for His Support or Debts. —

§ 35A-1339.

Reserved for future codification purposes.

Article 18. Gifts from Principal for Certain Purposes.

§ 35A-1340. Gifts authorized with approval of judge of superior court.

With the approval of the resident judge of the superior court of the district in which the guardian was appointed upon a duly verified petition, the guardian of a person judicially declared to be incompetent may, from the principal of the incompetent’s estate, make gifts to the State of North Carolina, its agencies, counties or municipalities, or the United States or its agencies or instrumentalities, or for religious, charitable, literary, scientific, historical, medical or educational purposes, or to individuals including the guardian. The incompetent’s estate shall consist of all assets owned by the incompetent, including nonprobate assets. For purposes of this Article, nonprobate assets are those which would not be distributable in accordance with the incompetent’s valid probated will or the provisions of Chapter 29 at the incompetent’s death. The incompetent’s nonprobate estate would include nonprobate assets only. References in this Article to the “guardian” include any Trustee appointed by the court under prior law as fiduciary for the incompetent ward’s estate.

History. 1963, c. 112, s. 1; 1987, c. 550, s. 5; 1999-270, s. 4.

Editor’s Note.

This Article is former Article 5B of Chapter 35, as recodified by Session Laws 1987, c. 550, s. 5.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-29.5, which was recodified as this section by Session Laws 1987, c. 550, s. 5.

Income or Corpus of Incompetent’s Estate Cannot Be Taken Except for His Support or Debts. —

§ 35A-1341. Prerequisites to approval by judge of gifts for governmental or charitable purposes.

The judge shall not approve any gifts from principal for governmental or charitable purposes unless it appears to the judge’s satisfaction all of the following requirements are met:

The making of the gifts will not leave the incompetent’s remaining principal estate insufficient to provide reasonable and adequate income for the support, maintenance, comfort and welfare of the incompetent and those legally entitled to support from the incompetent in order to maintain the incompetent and these dependents in the manner to which the incompetent and those dependents are accustomed and in keeping with their station in life.
Each donee is a donee to which a competent donor could make a gift, without limit as to amount, without incurring federal or State gift tax liability.
Each donee is a donee qualified to receive tax deductible gifts under federal and State income tax laws.
The making of the gifts will not jeopardize the rights of any creditor of the incompetent.
It is improbable that the incompetent will recover competency during his or her lifetime.
(5a) Sufficient credible evidence is presented to the court that the proposed gift is of a nature which the incompetent would have approved prior to being declared incompetent.
Either a. or b. applies:
1. All of the following apply:
  1. The incompetent, prior to being declared incompetent, executed a paper-writing with the formalities required by the laws of North Carolina for the execution of a valid will, including a paper-writing naming as beneficiary a revocable trust created by the incompetent.
  2. Specific devises, or nondiscretionary distributions of specific amounts of money, income or property included in the paper-writing or revocable trust or both, will not be jeopardized by making the gifts.
  3. All residuary devisees and beneficiaries designated in the paper-writing or revocable trust or both, who would take under the paper-writing or revocable trust or both, if the incompetent died contemporaneously with the signing of the order of approval of the gifts and the paper-writing was probated as the incompetent’s will and the spouse, if any, of the incompetent have been given at least 10 days’ written notice that approval for the gifts will be sought and that objection may be filed with the clerk of superior court of the county in which the guardian was appointed, within the 10-day period.
2. Both of the following apply:
  1. That so far as is known the incompetent has not prior to being declared incompetent, executed a will which could be probated upon the death of the incompetent; and
  2. All persons who would share in the incompetent’s intestate estate, if the incompetent died contemporaneously with the signing of the order of approval, have been given at least 10 days’ written notice that approval for the gifts will be sought and that objection may be filed with the clerk of the superior court, of the county in which the guardian was appointed, within the 10-day period.
If the gift for which approval is sought is of a nonprobate asset, all persons who would share in that nonprobate asset if the incompetent died contemporaneously with the signing of the order of approval have been given at least 10 days’ written notice that approval for the gifts will be sought and that objection may be filed with the clerk of superior court of the county in which the guardian was appointed within the 10-day period. This notice requirement shall be in addition to the notice requirements contained in G.S. 35A-1341(6) a.3. and (6)b.2.

History. 1963, c. 112, s. 2; 1987, c. 550, s. 5; 1999-270, s. 5; 2011-284, s. 40.

Effect of Amendments.

Session Laws 2011-284, s. 40, effective June 24, 2011, deleted “legacies, bequests” following “Specific” in subdivision (6)a.2.; and deleted “legatees” following “residuary” near the beginning of subdivision (6)a.3.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-29.6, which was recodified as this section by Session Laws 1987, c. 550, s. 5.

The proceeding under former Article 5B of Chapter 35 is in personam. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

The incompetent and her guardian are the only necessary parties. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

Section Requires Notice to Those Who May Benefit on Incompetent’s Death. —

Former G.S. 35-29.6 makes a condition precedent to the judge’s approval “at least 10 days’ written notice that approval for such gifts will be sought and that objection may be filed with the clerk of the superior court, of the county in which the guardian or trustee was appointed,” to those named as legatees or devisees, if incompetent has executed a will, or to those who would be heirs and distributees if the incompetent died intestate contemporaneously with the filing of the petition. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

Opportunity to Present Facts to Court. —

Former G.S. 35-29.6 recognizes the contingent or potential interest of those who would probably benefit financially by the death of an incompetent; and, because of their interest, notice must be given to them. Those who must have notice are given an opportunity to present to the court facts which will assist the court in determining whether the action proposed by the trustee is detrimental to the estate of the incompetent, or whether the incompetent, if then competent, would probably not act as the trustee proposes to act. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

Beneficiaries Are Not Parties to Trustee’s Proceeding. —

Those named as beneficiaries in an incompetent’s will have no interest in her properties so long as she lives. They take at her death only such properties as she then owns. They are not parties, and former G.S. 35-29.6 does not purport to make them parties, to a proceeding initiated by the trustee. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

Personal Service of Notice Outside State. —

See In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

§ 35A-1341.1. Prerequisites to approval by judge of gifts to individuals.

The judge shall not approve gifts from principal to individuals unless it appears to the judge’s satisfaction that all of the following requirements have been met:

Making the gifts will not leave the incompetent’s remaining principal estate insufficient to provide reasonable and adequate income for the support, maintenance, comfort, and welfare of the incompetent in order to maintain the incompetent and any dependents legally entitled to support from the incompetent in the manner to which the incompetent and those dependents are accustomed and in keeping with their station in life.
The making of the gifts will not jeopardize the rights of any existing creditor of the incompetent.
It is improbable that the incompetent will recover competency during his or her lifetime.
The judge determines that either a., b., c., or d. applies.
1. All of the following apply:
  1. The incompetent, prior to being declared incompetent, executed a paper-writing with the formalities required by the laws of North Carolina for the execution of a valid will, including a paper-writing naming as beneficiary a revocable trust created by the incompetent.
  2. Each donee is entitled to one or more specific devises, or distributions of specific amounts of money, income, or property under either the paper-writing or revocable trust or both or is a residuary devisee or beneficiary designated in the paper-writing or revocable trust or both.
  3. The making of the gifts will not jeopardize any specific devise, or distribution of specific amounts of money, income, or property.
2. That so far as is known the incompetent has not, prior to being declared incompetent, executed a will which could be probated upon the death of the incompetent, and each donee is a person who would share in the incompetent’s intestate estate, if the incompetent died contemporaneously with the signing of the order of approval of the gifts.
3. The donee is a person who would share in the incompetent’s nonprobate estate, if the incompetent died contemporaneously with the signing of the order of approval.
4. The donee is the spouse, parent, descendant of the incompetent, or descendant of the incompetent’s parent, and the gift qualifies either for the federal annual gift tax exclusion under section 2503(b) of the Internal Revenue Code or is a qualified transfer for tuition or medical expenses under section 2503(e) of the Internal Revenue Code.
If the incompetent, prior to being declared incompetent, executed a paper-writing with the formalities required by the laws of North Carolina for the execution of a valid will, including a paper-writing naming as beneficiary a revocable trust created by the incompetent; then all residuary devisees and beneficiaries designated in the paper-writing or revocable trust or both, who would take under the paper-writing or revocable trust or both if the incompetent died contemporaneously with the signing of the order of approval of the gifts and the paper-writing was probated as the incompetent’s will, the spouse, if any, of the incompetent and all persons identified in G.S. 35A-1341.1(7) have been given at least 10 days’ written notice that approval for the gifts will be sought and that objection may be filed with the clerk of superior court of the county in which the guardian was appointed, within the 10-day period.
If so far as is known, the incompetent has not, prior to being declared incompetent, executed a will which could be probated upon the death of the incompetent, all persons who would share in the incompetent’s estate, if the incompetent died contemporaneously with the signing of the order of approval, have been given at least 10 days’ written notice that approval for the gifts will be sought and that objection may be filed with the clerk of the superior court of the county in which the guardian was appointed, within the 10-day period.
If the gift for which approval is sought is of a nonprobate asset, all persons who would share in that nonprobate asset if the incompetent died contemporaneously with the signing of the order of approval have been given at least 10 days’ written notice that approval for the gifts will be sought and that objection may be filed with the clerk of the superior court of the county in which the guardian was appointed within the 10-day period. This notice requirement shall be in addition to the notice requirements contained in G.S. 35A-1341.1(5) and (6) above. The judge may order that the gifts be made in cash or in specific assets and may order that the gifts be made outright, in trust, under the North Carolina Uniform Transfers to Minors Act, under the North Carolina Uniform Custodial Trust Act, or otherwise. The judge may also order that the gifts be treated as an advancement of some or all of the amount the donee would otherwise receive at the incompetent’s death.

History. 1999-270, s. 6; 2011-284, s. 41; 2013-91, s. 3(d).

Effect of Amendments.

Session Laws 2011-284, s. 41, effective June 24, 2011, in subdivisions (4)a.2. and (4)a.3., deleted “legacies, bequests” or similar language following “specific”; and in subdivisions (4)a.2. and (5), deleted “legatee” or similar language following “residuary.”

Session Laws 2013-91, s. 3(d), effective June 12, 2013, substituted “the gift qualifies either for the federal annual gift tax exclusion under section 2503(b) of the Internal Revenue Code or is a qualified transfer for tuition or medical expenses under section 2503(e) of the Internal Revenue Code” for “the amount of the gift does not exceed the federal annual gift tax exclusion” in sub-subdivision (4)d.

§ 35A-1342. Who deemed specific and residuary devisees of incompetent under G.S. 35A-1341.

For purposes of G.S. 35A-1341(6) a and G.S. 35A-1341.1(4) and (5), if the paper-writing provides for the residuary estate to be placed in trust for a term of years, or if the paper-writing names as beneficiary a revocable trust created by the incompetent, and the trust or trusts include dispositive provisions which provide that assets continue in trust for a term of years with stated amounts of income payable to designated beneficiaries during the term and stated amounts payable to designated beneficiaries upon termination of the trust or trusts, the designated beneficiaries shall be deemed to be specific devisees and beneficiaries and those taking the remaining income of the trust or trusts and, at the end of the term, the remaining principal shall be deemed to be residuary devisees and beneficiaries who would take under the paper-writing or revocable trust or both if the incompetent died contemporaneously with the signing of the order of approval of the gifts. In no case shall any prospective executor or trustee be considered either a specific or residuary devisee or beneficiary on the sole basis of prospective service as executor or trustee.

History. 1963, c. 112, s. 3; 1987, c. 550, s. 5; 1999-270, s. 7; 2011-284, s. 42.

Effect of Amendments.

Session Laws 2011-284, s. 42, effective June 24, 2011, deleted “legatees and” following “residuary” in the section heading; twice deleted “legatees” preceding “devisees” in the first sentence; and deleted “legatee” preceding “devisee” in the last sentence.

§ 35A-1343. Notice to minors and incompetents under G.S. 35A-1341 and G.S. 35A-1341.1.

If any person, to whom notice must be given under the provisions of G.S. 35A-1341 and G.S. 35A-1341.1 is a minor or is incompetent, or is an unborn or unascertained beneficiary, then the notice shall be given to his duly appointed guardian or other duly appointed representative: Provided, that if a minor, incompetent, unborn, or unascertained beneficiary has no guardian or representative, then a guardian ad litem shall be appointed by the judge and the guardian ad litem shall be given the notice herein required.

History. 1963, c. 112, s. 4; 1987, c. 550, s. 5; 1999-270, s. 8.

§ 35A-1344. Objections to proposed gift; fact that incompetent had 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 the attention of the judge, who shall hear the same, and determine the validity and materiality of such objection and make his order accordingly. If no such objection is filed, the judge shall include a finding to that effect in such order as he may make. The judge shall not withhold his approval merely because the incompetent, prior to becoming incompetent, had not made gifts to the same donees or other gifts similar in amount or type.

History. 1963, c. 112, s. 5; 1987, c. 550, s. 5.

§ 35A-1345. Validity of gift.

A gift made with the approval of the judge under the provisions of this Article shall be deemed to be a gift made by the incompetent, and shall be as valid in all respects as if made by a competent person.

History. 1963, c. 112, s. 6; 1987, c. 550, s. 5.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-29.10, which was recodified as this section by Session Laws 1987, c. 550, s. 5.

Income or Corpus of Incompetent’s Estate Cannot Be Taken Except for His Support or Debts. —

§§ 35A-1346 through 35A-1349.

Reserved for future codification 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 trustee of such incompetent, with the approval of the resident judge of the superior court of the district in which he was appointed, upon a duly verified petition may declare the trust to be irrevocable and make a gift of the life interest of the incompetent to the State of North Carolina, its agencies, counties or municipalities, or to the United States or its agencies or instrumentalities, or for religious, charitable, literary, scientific, historical, medical or educational purposes.

History. 1963, c. 113, s. 1; 1987, c. 550, s. 6.

Editor’s Note.

This Article is former Article 5C of Chapter 35, as recodified by Session Laws 1987, c. 550, s. 6.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under G.S. 35-29.11, which was recodified as this section by Session Laws 1987, c. 550, s. 6.

Income or Corpus of Incompetent’s Estate Cannot Be Taken Except for His Support or Debts. —

Modification of Trust Does Not Rewrite Contract. —

Modification of a trust by making it irrevocable and donating the income for the life of the incompetent trustor to certain designated charities does not rewrite the contract so as to affect the rights of the ultimate beneficiaries, but merely authorizes the trustees to do those things which the trustor, if competent, would probably have done. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

§ 35A-1351. Prerequisites to approval of gift.

The judge shall not approve the gift unless it appears to the judge’s satisfaction that:

It is improbable that the incompetent will recover competency during his or her lifetime;
The estate of the incompetent, after making the gift and after payment of any gift taxes which may be incurred by reason of the declaration of irrevocability, will be sufficient to provide reasonable and adequate income for the support, maintenance, comfort and welfare of the incompetent and those legally entitled to support from the incompetent in order to maintain the incompetent and such dependents in the manner to which the incompetent and such dependents are accustomed and in keeping with their station in life (and in no event less than twice the average, for the five calendar years preceding the calendar year of such gift, of expenditures for the incompetent’s support, maintenance, comfort and welfare);
Each donee of any part of the life interest is a donee to which a competent donor could make a gift, without limit as to amount, without incurring federal or State gift tax liability;
Each donee of any part of the life interest is a donee qualified to receive tax deductible gifts under federal and State income tax laws.
Either:
1. 1. The incompetent, prior to being declared incompetent, executed a paper-writing, with the formalities required by the laws of North Carolina for the execution of a valid will;
  2. Specific devises of specific amounts of money, income or property included in such paper-writing, will not be jeopardized by making such gifts;
  
  3. All residuary devisees designated in such paper-writing, who would take under the paper-writing if the incompetent died contemporaneously with the signing of the order of approval of such gifts, and such paper-writing was probated as the incompetent’s will and the spouse, if any, of such incompetent have been given at least 10 days’ written notice that approval for such gifts will be sought and that objection may be filed with the clerk of superior court, of the county in which the guardian or trustee was appointed, within the 10-day period; or
2. 1. That so far as is known the incompetent has not prior to being declared incompetent, executed a will which could be probated upon the death of the incompetent; and
  2. All persons who would share in the incompetent’s estate, if the incompetent died contemporaneously with the signing of the order of approval, have been given at least 10 days’ written notice that approval for such gifts will be sought and that objection may be filed with the clerk of the superior court, of the county in which the guardian or trustee was appointed, within the 10-day period.

History. 1963, c. 113, s. 2; 1987, c. 550, s. 6; 2011-284, s. 43.

Effect of Amendments.

Session Laws 2011-284, s. 43, effective June 24, 2011, substituted “the judge’s” for “his” in the introductory language; deleted “legacies, bequests or” following “Specific” in subdivision (5)a.2.; and deleted “legatees and” following “All residuary” in subdivision (5)a.3.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-29.12, which was recodified as this section by Session Laws 1987, c. 550, s. 6.

The proceeding under former Article 5C of Chapter 35 was in personam. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

The incompetent and her guardian are the only necessary parties. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

Section Requires Notice to Those Who May Benefit on Incompetent’s Death. —

Former G.S. 35-29.12 makes a condition precedent to the judge’s approval “at least 10 days’ written notice that approval for such gifts will be sought and that objection may be filed with the clerk of the superior court, of the county in which the guardian or trustee was appointed,” to those named as legatees or devisees, if incompetent has executed a will, or to those who would be heirs and distributees if the incompetent died intestate contemporaneously with the filing of the petition. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

Opportunity to Present Facts to Court. —

Former G.S. 35-29.12 recognizes the contingent or potential interest of those who would probably benefit financially by the death of an incompetent; and, because of their interest, notice must be given to them. Those who must have notice are given an opportunity to present to the court facts which will assist the court in determining whether the action proposed by the trustee is detrimental to the estate of the incompetent, or whether the incompetent, if then competent, would probably not act as the trustee proposes to act. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

Beneficiaries Are Not Parties to Trustee’s Proceeding. —

Those named as beneficiaries in an incompetent’s will have no interest in her properties so long as she lives. They take at her death only such properties as she then owns. They are not parties, and former G.S. 35-29.12 does not purport to make them parties, to a proceeding initiated by the trustee. In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

Personal Service of Notice Outside State. —

See In re Trusteeship of Kenan, 262 N.C. 627 , 138 S.E.2d 547, 1964 N.C. LEXIS 741 (1964).

§ 35A-1352. Who deemed specific and residuary devisees of incompetent under G.S. 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 years, with stated amounts of income payable to designated beneficiaries during the term and stated amounts payable to designated beneficiaries upon termination of the trust, such designated beneficiaries shall be deemed to be specific devisees and those taking the remaining income of the trust and, at the end of the term, the remaining principal shall be deemed to be residuary devisees who would take under the paper-writing if the incompetent died contemporaneously with the signing of the order of approval of such gifts. In no case shall any prospective executor or trustee be considered either a specific or residuary devisee.

History. 1963, c. 113, s. 3; 1987, c. 550, s. 6; 2011-284, s. 44.

Effect of Amendments.

Session Laws 2011-284, s. 44, effective June 24, 2011, deleted “legatees and” following “residuary” in the section heading; in the first sentence, updated the section reference and deleted “legatees and” following “specific”; and, in the first and last sentences, deleted “legatees or” or “legatee or” following “residuary.”

§ 35A-1353. Notice to minors and incompetents under G.S. 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 the notice shall be given to his duly appointed guardian or other duly appointed representative: Provided, that if a minor or incompetent has no such guardian or representative, then a guardian ad litem shall be appointed by the judge and such guardian ad litem shall be given the notice herein required.

History. 1963, c. 113, s. 4; 1987, c. 550, s. 6.

§ 35A-1354. Objections to proposed declaration and gift; fact that incompetent had not previously made similar gifts.

History. 1963, c. 113, s. 5; 1987, c. 550, s. 6.

§ 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 declaration and gift of the incompetent and shall be as valid in all respects as if made by a competent person.

History. 1963, c. 113, s. 6; 1987, c. 550, s. 6.

CASE NOTES

Editor’s Note. —

The case cited below was decided under G.S. 35-29.16, which was recodified as this section by Session Laws 1987, c. 550, s. 6.

Income or Corpus of Incompetent’s Estate Cannot Be Taken Except for His Support or Debts. —

§§ 35A-1356 through 35A-1359.

Reserved for future codification purposes.

Article 20. Guardians’ Deeds Validated When Seal Omitted.

§ 35A-1360. Deeds by guardians omitting seal, prior to January 1, 1944, validated.

All deeds executed prior to the first day of January, 1944, by any guardian, acting under authority obtained by him from the superior court as required by law, in which the guardian has omitted to affix his seal after his signature and/or has omitted to affix the seal after the signature of his ward shall be good and valid, and shall pass the title to the land which the guardian was authorized to convey: Provided, however, this section shall not apply to any pending litigation.

History. 1947, c. 531; 1987, c. 550, s. 9.

Editor’s Note.

This Article is former Article 4A of Chapter 33, as recodified by Session Laws 1987, c. 550, s. 9.

§ 35A-1361. Certain private sales validated.

All private sales of real and personal property made by a guardian under Article 4 of this Chapter before June 1, 1985, that, under G.S. 1-339.36 , should have been conducted as public sales because an upset bid was submitted, are validated to the same extent as if the guardian had complied with the procedures for a public sale.

History. 1985, c. 654, s. 1(2); 1987, c. 550, s. 9.

§§ 35A-1362 through 35A-1369.

Reserved for future codification purposes.

Standby Guardians.

Article 21. Standby Guardianship.

§ 35A-1370. Definitions.

For purposes of this Article:

“Alternate standby guardian” means a person identified in either a petition or designation to become the guardian of the person or, when appropriate, the general guardian of a minor child or incompetent adult, pursuant to G.S. 35A-1373 or to G.S. 35A-1374 , when the person identified as the standby guardian and the designator or petitioner has identified an alternate standby guardian.
“Attending physician” means the physician who has primary responsibility for the treatment and care of the parent or legal guardian. When more than one physician shares this responsibility, or when a physician is acting on the primary physician’s behalf, any such physician may act as the attending physician pursuant to this section. When no physician has this responsibility, a physician who is familiar with the petitioner’s medical condition may act as the attending physician pursuant to this Article.
“Debilitation” means a chronic and substantial inability, as a result of a physically debilitating illness, disease, or injury, to care for one’s minor child or to satisfy his or her duties as guardian of the person or as general guardian of an incompetent adult.
“Designation” means a written document voluntarily executed by the designator pursuant to this Article.
“Designator” means a person who suffers from a progressive chronic illness or an irreversible fatal illness and who is (i) the biological or adoptive parent, the guardian of the person, or the general guardian of a minor child or (ii) the guardian of the person or the general guardian of an incompetent adult. A designation under this Article may be made on behalf of a designator by the guardian of the person or the general guardian of the designator.
“Determination of debilitation” means a written determination made by the attending physician which contains the physician’s opinion to a reasonable degree of medical certainty regarding the nature, cause, extent, and probable duration of the debilitation of the petitioner or designator.
“Determination of incapacity” means a written determination made by the attending physician which contains the physician’s opinion to a reasonable degree of medical certainty regarding the nature, cause, extent, and probable duration of the incapacity of the petitioner or designator.
“Incapacity” means a chronic and substantial inability, as a result of mental or organic impairment, to understand the nature and consequences of decisions concerning the care of one’s minor child or of an incompetent adult, and a consequent inability to make these decisions.
(8a) “Incompetent adult” means an adult or emancipated minor who is subject to a guardianship of the person or a general guardianship.
“Minor child” means an unemancipated child or children under the age of 18 years.
“Petitioner” means a person who suffers from a progressive chronic illness or an irreversible fatal illness and who is (i) the biological parent, the adoptive parent, the guardian of the person, or the general guardian of a minor child or (ii) the guardian of the person or the general guardian of an incompetent adult. A proceeding under this Article may be initiated and pursued on behalf of a petitioner by the guardian of the person, the general guardian of the petitioner, or by a person appointed by the clerk of superior court pursuant to Rule 17 of the Rules of Civil Procedure as guardian ad litem for the purpose of initiating and pursuing a proceeding under this Article on behalf of a petitioner.
“Standby guardian” means a person appointed pursuant to G.S. 35A-1373 or designated pursuant to G.S. 35A-1374 to become the guardian of the person or, when appropriate, the general guardian of a minor child or incompetent adult upon the death of a petitioner or designator, upon a determination of debilitation or incapacity of a petitioner or designator, or with the consent of a petitioner or designator.
“Triggering event” means an event stated in the designation executed or order entered under this Article which empowers the standby guardian, or the alternate standby guardian, if one is identified and the standby guardian is unwilling or unable to serve, to assume the duties of the office, which event may be the death of a petitioner or designator, incapacity of a petitioner or designator, debilitation of a petitioner or designator with the petitioner’s or designator’s consent, or the consent of the petitioner or designator, whichever occurs first.

History. 1995, c. 313, s. 1; 2015-205, s. 1.

Editor’s Note.

The sections in this Article have been renumbered at the direction of the Revisor of Statutes, the section numbers in the enacting act having been G.S. 35A-1370 to 35A-1381.

The Rules of Civil Procedure, referred to above, may be found at G.S. 1A-1 .

Session Laws 2015-205, s. 1, rewrote the Subchapter IV heading, which formerly read “Standby Guardians for Minor Children.”

Effect of Amendments.

Session Laws 2015-205, s. 1, effective August 11, 2015, inserted “or incompetent adult” in subdivisions (1) and (11); added “or to satisfy his or her duties as guardian of the person or as general guardian of an incompetent adult” in subdivision (3); added clause (ii) in the first sentence of subdivisions (5) and (10); inserted “or of an incompetent adult” in subdivision (8); and added subdivision (8a).

§ 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 for a minor child under this Article. Provided that the clerk shall have no jurisdiction, no standby guardian may be appointed under this Article, and no designation may become effective under this Article when a district court has assumed jurisdiction over the minor child in an action under Chapter 50 of the General Statutes or in an abuse, neglect, or dependency proceeding under Subchapter I of Chapter 7B of the General Statutes, or when a court in another state has assumed such jurisdiction under a comparable statute.

History. 1995, c. 313, s. 1; 1998-202, s. 13(g).

§ 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 standby guardian is unwilling or unable to serve as a standby guardian and the designator or petitioner has identified an alternate standby guardian, then the alternate standby guardian shall become the standby guardian, upon the same conditions as set forth in this Article.

History. 1995, c. 313, s. 1.

§ 35A-1373. Appointment by petition of standby guardian; petition, notice, hearing, order.

A petitioner shall commence a proceeding under this Article for the appointment of a standby guardian (i) in the case of a minor child, by filing a petition with the clerk of superior court of the county in which the minor child resides or is domiciled at the time of filing or (ii) in the case of an incompetent adult, by filing a petition with the clerk of superior court in the county where the guardianship is docketed. A petition filed by a guardian of the person or a general guardian of the minor child who was appointed under this Chapter shall be treated as a motion in the cause in the original guardianship, but the provisions of this section shall otherwise apply.
A petition for the judicial appointment of a standby guardian shall:
1. Identify the petitioner, the minor child or incompetent adult, the person designated to be the standby guardian, and the person designated to be the alternate standby guardian, if any;
2. State that the authority of the standby guardian is to become effective upon the death of the petitioner, upon the incapacity of the petitioner, upon the debilitation of the petitioner with the consent of the petitioner, or upon the petitioner’s signing of a written consent stating that the standby guardian’s authority is in effect, whichever occurs first;
3. State that the petitioner suffers from a progressively chronic illness or an irreversible fatal illness, and the basis for such a statement, such as the date and source of a medical diagnosis, without requiring the identification of the illness in question;
4. State whether there are any lawsuits, in this or any other jurisdiction, involving the minor child or incompetent adult and, if so, identify the parties, the case numbers, and the states and counties where filed; and
5. Be verified by the petitioner in front of a notary public or another person authorized to administer oaths.
A copy of the petition and written notice of the time, date, and place set for a hearing shall be served upon any biological or adoptive parent of the minor child who is not a petitioner (if the petition concerns a minor child) or on such as would be required if the petition was filed as a motion in the cause under G.S. 35A-1207 (if the petition concerns an incompetent adult), and on any other person the clerk may direct, including the minor child or incompetent adult. If the petition concerns a minor child, service shall be made pursuant to Rule 4 of the Rules of Civil Procedure, unless the clerk directs otherwise. If the petition concerns an incompetent adult, service shall be made pursuant to Rule 5 of the Rules of Civil Procedure, unless the clerk directs otherwise. When service is made by the sheriff, the sheriff shall make such service without demanding his fees in advance. Parties may waive their right to notice of the hearing and the clerk may proceed to consider the petition upon determining that all necessary parties are before the court and agree to have the petition considered.
If at or before the hearing any parent entitled to notice under subsection (c) of this section presents to the clerk a written claim for custody of the minor child, the clerk shall stay further proceedings under this Article pending the filing of a complaint for custody of the minor child under Chapter 50 of the General Statutes and, upon the filing of such a complaint, shall dismiss the petition. If no such complaint is filed within 30 days after the claim is presented, the clerk shall conduct a hearing and enter an order as provided for in this section.
The petitioner’s appearance at the hearing shall not be required if the petitioner is medically unable to appear, unless the clerk determines that the petitioner is able with reasonable accommodation to appear and that the interests of justice require that the petitioner be present at the hearing.
At the hearing, the clerk shall receive evidence necessary to determine whether the requirements of this Article for the appointment of a standby guardian have been satisfied. If the clerk finds that the petitioner suffers from a progressive chronic illness or an irreversible fatal illness, that the best interests of the minor child or incompetent adult will be promoted by the appointment of a standby guardian of the person or general guardian, and that the standby guardian and the alternate standby guardian, if any, are fit to serve as guardian of the person or general guardian of the minor child or incompetent adult, the clerk shall enter an order appointing the standby guardian named in the petition as standby guardian of the person or standby general guardian of the minor child or incompetent adult and shall issue letters of appointment to the standby guardian. The order may also appoint the alternate standby guardian named in the petition as the alternate standby guardian of the person or alternate general guardian of the minor child or incompetent adult in the event that the person named as standby guardian is unwilling or unable to serve as standby guardian and shall provide that, upon a showing of that unwillingness or inability, letters of appointment will be issued to the alternate standby guardian.
Letters of appointment issued pursuant to this section shall state that the authority of the standby guardian or alternate standby guardian of the person or the standby guardian or alternate standby general guardian is effective upon the receipt by the guardian of a determination of the death of the petitioner, upon receipt of a determination of the incapacity of the petitioner, upon receipt of a determination of the debilitation of the petitioner and the petitioner’s consent, whichever occurs first, and shall also provide that the authority of the standby guardian may earlier become effective upon written consent of the petitioner pursuant to subsection (l) of this section.
If at any time prior to the commencement of the authority of the standby guardian the clerk, upon motion of the petitioner or any person entitled to notice under subsection (c) of this section and after hearing, finds that the requirements of subsection (f) of this section are no longer satisfied, the clerk shall rescind the order.
Where the order provides that the authority of the standby guardian is effective upon receipt of a determination of the death of the petitioner, the standby guardian’s authority shall commence upon the standby guardian’s receipt of proof of death of the petitioner such as a copy of a death certificate or a funeral home receipt. The standby guardian shall file the proof of death in the office of the clerk who entered the order within 90 days of the date of the petitioner’s death or the standby guardian’s authority may be rescinded by the clerk.
Where the order provides that the authority of the standby guardian is effective upon receipt of a determination of the incapacity of the petitioner, the standby guardian’s authority shall commence upon the standby guardian’s receipt of a copy of the determination of incapacity made pursuant to G.S. 35A-1375 . The standby guardian shall file a copy of the determination of incapacity in the office of the clerk who entered the order within 90 days of the date of the receipt of such determination, or the standby guardian’s authority may be rescinded by the clerk.
Where the order provides that the authority of the standby guardian is effective upon receipt of a determination of the debilitation of the petitioner, the standby guardian’s authority shall commence upon the standby guardian’s receipt of a copy of the determination of debilitation made pursuant to G.S. 35A-1375 , as well as a written consent signed by the petitioner. The standby guardian shall file a copy of the determination of debilitation and the written consent in the office of the clerk who entered the order within 90 days of the date of the receipt of such determination, or the standby guardian’s authority may be rescinded by the clerk.
Notwithstanding subsections (i), (j), and (k) of this section, a standby guardian’s authority shall commence upon the standby guardian’s receipt of the petitioner’s written consent to such commencement, signed by the petitioner in the presence of two witnesses who are at least 18 years of age, other than the standby guardian or the alternate standby guardian, who shall also sign the writing. Another person may sign the written consent on the petitioner’s behalf and at the petitioner’s direction if the petitioner is physically unable to do so, provided such consent is signed in the presence of the petitioner and the two witnesses. The standby guardian shall file the written consent in the office of the clerk who entered the order within 90 days of the date of such written consent, or the standby guardian’s authority may be rescinded by the clerk.
The petitioner may revoke a standby guardianship created under this section by executing a written revocation, filing it in the office of the clerk who entered the order, and promptly providing the standby guardian with a copy of the revocation.
A person appointed standby guardian pursuant to this section may at any time before the commencement of the person’s authority renounce the appointment by executing a written renunciation and filing it with the clerk who entered the order and promptly providing the petitioner with a copy of the renunciation. Upon the filing of a renunciation, the clerk shall issue letters of appointment to the alternate standby guardian, if any.

History. 1995, c. 313, s. 1; 2015-205, s. 1.

Editor’s Note.

The Rules of Civil Procedure, referred to above, may be found at G.S. 1A-1 .

Effect of Amendments.

Session Laws 2015-205, s. 1, effective August 11, 2015, in the first sentence of subsection (a), inserted “(i) in the case” and added clause (ii); deleted “of a minor child” following “standby guardian” in the introductory language of subsection (b); inserted “or incompetent adult” in subdivisions (b)(1) and (b)(4); in subsection (c), rewrote the first sentence, added “If the petition concerns a minor child” in the second sentence, and inserted the third sentence; inserted “or incompetent adult” throughout subsection (f); and made minor stylistic changes.

§ 35A-1374. Appointment by written designation; form.

A designator may designate a standby guardian by means of a written designation, signed by the designator in the presence of two witnesses at least 18 years of age, other than the standby guardian or alternate standby guardian, who shall also sign the writing. Another person may sign the written designation on the behalf of and at the direction of the designator if the designator is physically unable to do so, provided that the designation is signed in the presence of the designator and the two witnesses.
A designation of a standby guardian shall identify the designator, the minor child or incompetent adult, the person designated to be the standby guardian, and the person designated to be the alternate standby guardian, if any, and shall indicate that the designator intends for the standby guardian or the alternate standby guardian to become the guardian of the minor child or incompetent adult in the event that the designator either:
1. Becomes incapacitated;
2. Becomes debilitated and consents to the commencement of the standby guardian’s authority;
3. Dies prior to the commencement of a judicial proceeding to appoint a guardian of the person or general guardian of a minor child; or
4. Consents to the commencement of the standby guardian’s authority.
The authority of the standby guardian under a designation shall commence upon the same conditions as set forth in G.S. 35A-1373(i) through (l), as if the order referred to therein was a written description under this section.
The standby guardian or, if the standby guardian is unable or unwilling to serve, the alternate standby guardian shall commence a proceeding under this Article to be appointed guardian of the person or general guardian of the minor child or incompetent adult by, in the case of a minor child, filing a petition with the clerk of superior court of the county in which the minor child resides or is domiciled at the time of filing or, in the case of an incompetent adult, filing a petition with the clerk of superior court in the county where the guardianship is docketed. The petition shall be filed after receipt of either:
1. A copy of a determination of incapacity made pursuant to G.S. 35A-1375 ;
2. A copy of a determination of debilitation made pursuant to G.S. 35A-1375 and a copy of the designator’s written consent to such commencement;
3. A copy of the designator’s written consent to such commencement, made pursuant to G.S. 35A-1373(l) ; or
4. Proof of death of the designator, such as a copy of a death certificate or a funeral home receipt.
The standby guardian shall file a petition pursuant to subsection (d) of this section within 90 days of the date of the commencement of the standby guardian’s authority under this section, or the standby guardian’s authority shall lapse after the expiration of those 90 days, to recommence only upon filing of the petition.
A petition filed pursuant to subsection (d) of this section shall:
1. Append the written designation of such person as standby guardian; and
2. Append a copy of either (i) the determination of incapacity of the designator; (ii) the determination of debilitation of the designator and the written consent of the designator; (iii) the designator’s consent; or (iv) proof of death of the designator, such as a copy of a death certificate or a funeral home receipt; and
3. If the petition is by a person designated as an alternate standby guardian, state that the person designated as the standby guardian is unwilling or unable to act as standby guardian, and the basis for that statement; and
4. State whether there are any lawsuits, in this State or any other jurisdiction, involving the minor child or incompetent adult and, if so, identify the parties, the case numbers, and the states and counties where filed; and
5. Be verified by the standby guardian or alternate standby guardian in front of a notary public or another person authorized to administer oaths.
A copy of the petition and written notice of the time, date, and place set for a hearing shall be served upon any biological or adoptive parent of the minor child who is not a designator (if the petition concerns a minor child), on such persons as would be required if the petition was filed as a motion in the cause under G.S. 35A-1207 (if the petition concerns an incompetent adult), and on any other person the clerk may direct, including the minor child or incompetent adult. If the petition concerns a minor child, service shall be made pursuant to Rule 4 of the Rules of Civil Procedure, unless the clerk directs otherwise. If the petition concerns an incompetent adult, service shall be made pursuant to Rule 5 of the Rules of Civil Procedure, unless the clerk directs otherwise. When service is made by the sheriff, the sheriff shall make such service without demanding his fees in advance. Parties may waive their right to notice of the hearing and the clerk may proceed to consider the petition upon determining that all necessary parties are before the court and agree to have the petition considered.
If at or before the hearing any parent entitled to notice under subsection (c) of this section presents to the clerk a written claim for custody of the minor child, the clerk shall stay further proceedings under this Article pending the filing of a complaint for custody of the minor child under Chapter 50 of the General Statutes and, upon the filing of such a complaint, shall dismiss the petition. If no such complaint is filed within 30 days after the claim is presented, the clerk shall conduct a hearing and enter an order as provided for in this section.
At the hearing, the clerk shall receive evidence necessary to determine whether the requirements of this section have been satisfied. The clerk shall enter an order appointing the standby guardian or alternate standby guardian as guardian of the person or general guardian of the minor child or incompetent adult if the clerk finds that:
1. The person was duly designated as a standby guardian or alternate standby guardian;
2. That (i) there has been a determination of incapacity of the designator; (ii) there has been a determination of debilitation and the designator has consented to the commencement of the standby guardian’s authority; (iii) the designator has consented to that commencement; or (iv) the designator has died, such information coming from a document, such as a copy of a death certificate or a funeral home receipt;
3. That the best interests of the minor child or incompetent adult will be promoted by the appointment of the person designated as standby guardian or alternate standby guardian as guardian of the person or general guardian of the minor child or incompetent adult;
4. That the standby guardian or alternate standby guardian is fit to serve as guardian of the person or general guardian of the minor child or incompetent adult; and
5. That, if the petition is by a person designated as an alternate standby guardian, the person designated as standby guardian is unwilling or unable to serve as standby guardian.
The designator may revoke a standby guardianship created under this section by:
1. Notifying the standby guardian in writing of the intent to revoke the standby guardianship prior to the filing of the petition under this section; or
2. Where the petition has already been filed, by executing a written revocation, filing it in the office of the clerk with whom the petition was filed, and promptly providing the standby guardian with a copy of the written revocation.

History. 1995, c. 313, s. 1; 2015-205, s. 1.

Editor’s Note.

The Rules of Civil Procedure, referred to above, may be found at G.S. 1A-1 .

Effect of Amendments.

Session Laws 2015-205, s. 1, effective August 11, 2015, inserted “or incompetent adult” throughout the section; added “as if the order referred to therein was a written description under this section” in subsection (c); in the first sentence of subsection (d), inserted “in the case of a minor child” and added the language beginning “or, in the case of an incompetent adult”; in subsection (g), rewrote the first sentence, added “If the petition concerns a minor child” in the second sentence, and inserted the third sentence; added “of the designator” following “incapacity” in subdivision (i)(2); and made minor stylistic changes.

§ 35A-1375. Determination of incapacity or debilitation.

If requested by the petitioner, designator, or standby guardian, an attending physician shall make a determination regarding the incapacity or debilitation of the petitioner or designator for purposes of this Article.
A determination of incapacity or debilitation shall:
1. Be made by the attending physician to a reasonable degree of medical certainty;
2. Be in writing; and
3. Contain the attending physician’s opinion regarding the cause and nature of the incapacity or debilitation, as well as its extent and probable duration.
The attending physician shall provide a copy of the determination of incapacity or debilitation to the standby guardian, if the standby guardian’s identity is known to the physician.
The standby guardian shall ensure that the petitioner or designator is informed of the commencement of the standby guardian’s authority as a result of a determination of incapacity or debilitation and of the possibility of a future suspension of the standby guardian’s authority pursuant to G.S. 35A-1376 .

History. 1995, c. 313, s. 1.

§ 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 or designator is subsequently restored to capacity or ability to care for the child, the authority of the standby guardian based on that incapacity or debilitation shall be suspended. The attending physician shall provide a copy of the determination of restored capacity or ability to the standby guardian, if the identity of the standby guardian is known to the attending physician. If an order appointing the standby guardian as guardian of the person or general guardian of the minor child or incompetent adult has been entered, the standby guardian shall, and the petitioner or designator may, file a copy of the determination of restored capacity or ability in the office of the clerk who entered the order. A determination of restored capacity or ability shall:

Be made by the attending physician to a reasonable degree of medical certainty;
Be in writing; and
Contain the attending physician’s opinion regarding the cause and nature of the parent’s or legal guardian’s restoration to capacity or ability. Any order appointing the standby guardian as guardian of the person or general guardian of the minor child or incompetent adult shall remain in full force and effect, and the authority of the standby guardian shall recommence upon the standby guardian’s receipt of a subsequent determination of the petitioner’s or designator’s incapacity, pursuant to G.S. 35A-1373(j) , or upon the standby guardian’s receipt of a subsequent determination of debilitation pursuant to G.S. 35A-1373(k) , or upon the receipt of proof of death of the petitioner or designator, or upon the written consent of the petitioner or designator, pursuant to G.S. 35A-1373 ( l ).

History. 1995, c. 313, s. 1; 2015-205, s. 1.

Effect of Amendments.

Session Laws 2015-205, s. 1, effective August 11, 2015, inserted “or incompetent adult” in the third sentence of the first paragraph and in the last paragraph.

§ 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 or designator of any parental or guardianship rights, but shall confer upon the standby guardian concurrent authority with respect to the minor child.

History. 1995, c. 313, s. 1.

§ 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 the powers, authority, duties, and responsibilities of a guardian appointed pursuant to Subchapter II of this Chapter.

History. 1995, c. 313, s. 1.

§ 35A-1379. Appointment of guardian ad litem.

The clerk may appoint a volunteer guardian ad litem, if available, to represent the best interests of the minor child or incompetent adult and, where appropriate, express the wishes of the minor child or incompetent adult.
The duties of the guardian ad litem, when appointed, shall be to make an investigation to determine the facts, the needs of the minor child or incompetent adult and the available resources within the family to meet those needs, and to protect and promote the best interests of the minor child or incompetent adult until formally relieved of the responsibility by the clerk.
The court may order the guardian ad litem to conduct an investigation to determine the fitness of the intended standby guardian and alternate standby guardian, if any, to perform the duties of standby guardian.

History. 1995, c. 313, s. 1; 2015-205, s. 1.

Effect of Amendments.

Session Laws 2015-205, s. 1, effective August 11, 2015, inserted “or incompetent adult” throughout subsections (a) and (b).

§ 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 or G.S. 35A-1374 , provided that: (i) the clerk need not require a bond if the bond requirement is waived in writing by the petitioner or designator; and (ii) a general guardian appointed pursuant to G.S. 35A-1373 shall not be required to furnish a bond until a triggering event has occurred.

History. 1995, c. 313, s. 1.

§ 35A-1381. Accounting.

The accounting requirements of Article 10 of this Chapter apply to a general guardian appointed pursuant to this Article.

History. 1995, c. 313, s. 1.

§ 35A-1382. Termination.

Any standby guardianship created under this Article shall continue until:
1. If the ward is a minor child, the child reaches 18 years of age unless sooner terminated by order of the clerk who entered the order appointing the standby guardian.
2. Revocation pursuant to this Article.
3. Renunciation pursuant to this Article.
A standby guardianship shall terminate, and the authority of the standby guardian designated pursuant to G.S. 35A-1374 or of a guardian of the person or general guardian appointed pursuant to this Article shall cease, upon the entry of an order of the district court granting custody of the minor child to any other person.

History. 1995, c. 313, s. 1; 2015-205, s. 1.

Effect of Amendments.

Session Laws 2015-205, s. 1, effective August 11, 2015, rewrote the former first sentence of the section as subsection (a); and designated the former second sentence of the section as subsection (b).