An older couple sits on a bench on a cliff overlooking the ocean.

Capacity or competency?  Although these terms are often used interchangeably, capacity typically refers to a person’s clinical ability to make decisions about their care, while competency refers to a person’s legal right to make those decisions.  There are many different types of capacity, including medical, financial, testamentary, and independent living capacities, among others.  A person cannot be declared incompetent simply because he or she makes irresponsible or bad decisions.  For example, an adult may not be clinically incapacitated because he wastes money on odd purchases.  But if that adult lacks the capacity to recognize that he has no money left to live on because of his actions, that could be grounds for a decision of legal incompetence.  It is also important to note that merely having a developmental disability or mental illness does not solely render an adult incompetent; he or she must also lack capacity.  Typically, the law starts with the presumption of capacity, and the burden of proof is on the party bringing the petition to establish sufficient diminished capacity to justify the appointment of a guardian via capacity evaluation.

What happens if a court determines that a person lacks clinical capacity and therefore declares them incompetent?

If a personal is legally declared incompetent, the court then appoints a guardian.  Guardianship is a relationship created by state law in which a court gives one person or entity (the guardian) the duty and power to make decisions for another (the incapacitated person) North Carolina’s guardianship laws implicitly encourage the use of “limited guardianships” in which the person retains as many legal rights as they are capable of.  This means that the terms of the guardianship should preserve the opportunity for the incapacitated person to make as many decisions as possible and exercise rights that are within their comprehension and judgment, and be allowed to participate in all decisions that affect them, to the fullest extent of their capabilities.  

What happens in a guardianship proceeding?  

  • First, a petition to appoint a guardian for the incapacitated adult must be filed with the Clerk of Superior Court.  The petition must include the facts showing that the respondent is clinically incapacitated, an estimate of the respondent’s assets, and a list of the respondent’s next of kin. 
  • After the petition is filed, the respondent (the incapacitated adult) can either retain their own attorney or have an attorney appointed by the court.   The court may also appoint an interim guardian if there is imminent risk of harm to the respondent’s wellbeing that requires immediate intervention.  Typically, the issue of capacity is determined by the court, though the respondent is allowed to request a jury trial.  
  • A hearing is then held, in which the petitioner and the respondent can present evidence to support their case.  Depending on the extent of any evidence that is presented by the petitioner, the court may request a multidisciplinary evaluation of the respondent, which may include medical, psychological, and other social work evaluations.  
  • After hearing the evidence, the court will rule on the question of legal competency.  If the court rules that the respondent is legally competent, the proceeding ends with no further action.  If they rule that the respondent is legally incompetent, the respondent is then referred to as a “ward,” and the court will then appoint a guardian.  While the petitioner can request a particular person be named as guardian, it is important to note that the court is not required to agree to this request.  
  • The court will appoint a guardian based on the ward’s best interests.  To qualify as a guardian, a person must meet the statutory qualifications for appointment as a guardian, including filing annual financial reports with the court and agreeing to be bound to North Carolina laws.  

What does a capacity evaluation include?

Capacity evaluations include an assessment of four main elements: understanding, appreciation, reasoning, and communication.  The individual aspects of each evaluation may vary depending on the reason for referral, but a typical evaluation may include a clinical interview with the patient, a collateral interview with a close family member/friend, a review of relevant records (e.g., medical, psychiatric, school, employment), cognitive testing, and a formal capacity assessment interview.   A formal report is generated and includes a review of the patient’s history and background information, discussion of cognitive test results, diagnostic impressions, opinion on capacity, and recommendations about future care and steps to enhance capacity.  

Please see the following resources for additional information:

North Carolina Guardianship laws:

NC DHHS Info about guardianship:

Disability Rights of North Carolina:

National Guardianship Association:

Rethinking Guardianship NC:

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