Guardianships and the Law

January 4, 2019 | Julia Saikali

Effect of Adjudication of Incompetence -- What Rights and Privileges are Retained by the Ward?

Guardianship is an extreme deprivation of civil rights.  Historically, an adult who was adjudicated incompetent was considered to have lost his or her authority to exercise nearly all the legal and civil rights he or she had prior to being adjudicated incompetent.  The legal status of an incompetent adult was similar to that of a minor child- one who lacks the capacity to marry, make a will, vote, etc.

Our law favors moderation.  Guardianship should be limited when possible, seeking to preserve the opportunity for the person to exercise all those rights within his or her comprehension or judgment. N.C.G.S. § 35A-1201(a)(5).

A person who has been adjudicated incompetent may still retain certain legal rights even if not specifically provided for in the adjudication order.

Right to Vote.  Notwithstanding the contrary implication of N.C.G.S. § 122C-58, an Attorney General’s Opinion reasons that a person who has been adjudicated incompetent can register to vote and vote in all state elections in which he or she would otherwise be qualified to vote pursuant to the state constitution’s grant of universal suffrage. [43:1 N.C. Attorney General Reports 85, 85-87 (1973)]

Right to Marry.  North Carolina’s Court of Appeals has held in one case that a person who has been adjudicated incompetent retained the right to get married, despite objections from the guardian, because there was evidence that the ward retained sufficient capacity to understand the nature and consequences of his decision to marry. [Geitner v.Townsend, 67 N.C. App. 159, 312 S.E.2d 236 (1984).]

Right to Make a Will.  The fact that a person has been adjudicated incompetent raises a presumption that he or she lacks sufficient testamentary capacity to execute a valid will.  However, this presumption is rebuttable because testamentary capacity requires less than general capacity.  A person has testamentary capacity when he or she understands the “natural objects of his or her bounty,” understands the kind, nature, and extent of his or her property, and knows the manner in which he or she desires his or her act to take effect, and realizes the effect his or her act would have upon the estate. [In re Will of Maynard, 64 N.C. App. 211, 307 S.E. 2d 416 (1983).]

Right to Contract.  The fact that a person has been adjudicated incompetent raises a presumption that he or she lacks sufficient capacity to enter into a valid contract.  However, this presumption may be overcome by evidence that the individual had sufficient capacity to understand the nature and consequences of his or her actions at the time he or she entered into a contract. [Medical College of Virginia v. Maynard, 236 N.C. 506, 73 S.E.2d 315 (1952).]  Thus, contracts between an incompetent adult and another person are generally considered voidable, not void.  An incompetent adult is responsible for the costs of necessary goods or services that are provided to him or her by others.  [In re Dunn, 239 N.C. 378, 79 S.E. 2d 921 (1954).]

Right to be a Witness.  A person who has been adjudicated incompetent is competent to testify as a witness in a lawsuit if he or she understands the obligation of oath or affirmation, had the capacity to observe the matters about which he or she will testify, and has the capacity to remember and relate what he or she saw observed.  [State v. Benton, 276 N.C. 641, 174 S.E. 2d 793 (1970).]

The Privilege to Drive.  Once a person has been adjudicated incompetent, the Clerk of Superior Court sends a certified copy of the adjudication order to the Division of Motor Vehicles pursuant to N.C.G.S. § 21-17.1(b).  DMV decides whether the person retains the privilege to drive.  The ward has the burden of rebutting a presumption to revoke.  If DMV acts to revoke, the person may request a hearing in writing and shall retain their driving privileges until after the hearing.

 

 

 

Julia A Saikali
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