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© 2015 School of Government. The University of North Carolina at Chapel Hill
SOCIAL SERVICES LAW BULLETIN NO. 45 | OCTOBER 2015
Meredith Smith
Guardianship is the legal relationship under which a person or entity is appointed by a court
to make decisions and act on behalf of another person (the ward) with respect to the ward’s
personal affairs, financial affairs, or both.1 This proceeding is governed by Chapter 35A of the
North Carolina General Statutes (hereinafter G.S.) and presided over by the clerk of superior
court, who has original and exclusive jurisdiction in the areas of incompetency and adult guard-ianship.
Once the clerk2 enters an order adjudicating a ward to be incompetent and appoints
a guardian, that guardianship can be terminated in only two ways: upon death of the ward3 or
upon entry of an order by the clerk restoring the ward’s competency pursuant to G.S. 35A-1130.4
This bulletin analyzes ten common questions that arise in the context of a restoration proceed-ing
under G.S. 35A-1130; these are as follows:
1. How is a restoration proceeding initiated?
2. What happens if a motion for restoration is filed and it does not contain the
required elements to initiate an action?
3. Is a medical report or doctor’s note required to file for restoration? If the guardian,
the guardian ad litem, or the clerk wants to obtain medical records or other medical
evidence regarding the ward’s condition, how does he or she go about obtaining them?
4. Does the petitioner have to have an attorney to file a motion for restoration?
5. To file a motion for restoration, does the ward have to be able to write or read the motion?
This bulletin is an update to Social Services Law Bulletin No. 44, published in March 2015.
Meredith Smith is a School of Government faculty member specializing in public law and government.
1. John L. Saxon, North Carolina Guardianship Manual § 1.4-A, at 7 (2008).
2. The majority of restoration cases are presided over and decided by the clerk. However, the ward
has a right to trial by jury in a restoration proceeding under G.S.35A-1130(d). A trial by jury may be
requested by the ward, his or her attorney, or the guardian ad litem. See G.S. 35A-1130(c). Failure to
request a trial by jury constitutes a waiver of that right. Id. The clerk, on his or her own motion, may
require a trial by jury in accordance with G.S. 1A-1, Rule 39(b). Id. The right of the clerk to enter an order
for a trial by jury is notwithstanding any request or failure to request a trial by jury by the ward, his or
her counsel, or his or her guardian ad litem. Id. This bulletin focuses on non-jury restoration proceed-ings,
but similar principals described herein apply to cases involving a jury.
3. See G.S. 35A-1295(a)(3).
4. See G.S. 35A-1295(a)(2).
Restoration to Competency under
G.S. 35A-1130: Common Issues and Questions
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© 2015 School of Government. The University of North Carolina at Chapel Hill
6. Once a motion or other document is filed initiating the proceeding, when is the
hearing held, what is the process for service, and who receives notice of the filing?
7. May the clerk appoint a guardian ad litem in the restoration proceeding? If so,
who is responsible for payment of the guardian ad litem fees?
8. What is the burden of proof that the petitioner must meet at the hearing for
restoration, and what may the clerk consider in making his or her ruling?
9. What rights are restored when the motion for restoration is granted by the clerk?
10. What is the applicable appeal period when the clerk denies the petitioner’s
request for restoration? What is the standard of review on appeal?
1. How is a restoration proceeding initiated?
Any interested person, including a ward, a member of the ward’s family, or a guardian, may file
papers with the clerk of superior court to initiate a restoration proceeding.5 There is no single
document or form that must be filed. As set forth below, a document presented for filing with
the clerk of superior court is sufficient to initiate the action as long as it is evident from the
document itself that the filing party is seeking restoration for an identifiable ward and the docu-ment
is properly verified and contains facts tending to show competence.
Article 3 of G.S. Chapter 35A governs the process of restoring competency after an adult6
has been adjudicated incompetent under Article 1 of Chapter 35A. Article 3 of that chapter
provides, in part, that the guardian,7 the ward,8 or any other interested person9 “may petition for
restoration of the ward to competency by filing a motion in the cause.”10 The use throughout the
statute of the words “petition” and “petitioner” along with “motion in the cause” and “motion”
often elicits confusion about what a person or entity must file to initiate the restoration process
before the clerk of superior court.11 This confusion is exacerbated by the fact that although what
5. See G.S. 35A-1130(a).
6. This bulletin focuses specifically on restoration of competency of an adult. Minors, defined as
persons under the age of 18, are legally incompetent to transact business or give consent for most things
until they reach the age of 18 unless they are legally emancipated. See G.S.35A-1201(a)(6); G.S. 48A-2. At
the age of 18, a minor attains competency and must be adjudicated incompetent under G.S. Chapter 35A
in order for the statute and any subsequent restoration proceeding to apply. A verified petition for adjudi-cation
of incompetence of a minor may be filed when the minor is 17.5 years old. See G.S. 35A-1105.
7. See G.S. 35A-1130(a). The guardian has an ethical duty to petition for restoration of the ward’s com-petency
if the guardian believes that the ward may no longer be legally incompetent. See John L. Saxon,
Guardianship of Incapacitated Adults: A Summary of North Carolina Law 18 (Nov. 2004) (on file with
author). A 2014 amendment to the North Carolina General Statutes provides that status reports filed by
guardians must include a report of the guardian’s efforts to restore competency. See G.S. 35A-1242(a1)(4).
8. One of the rights retained by the ward, despite an adjudication of incompetency, is the right to peti-tion
for restoration. See G.S. 35A-1130(a).
9. Id. If not the ward or the ward’s guardian, the filing party must be an interested person. “Interested
person” likely includes, but is not limited to, the ward’s next of kin, a government entity or agency, such
as a department of social services, a medical provider or other treatment provider of the ward, and any of
the original parties to the incompetency/guardianship action.
10. See G.S. 35A-1130(a).
11. See generally G.S. 35A-1130.
Restoration to Competency under G.S. 35A-1130: Common Issues and Questions 3
© 2015 School of Government. The University of North Carolina at Chapel Hill
is filed is treated as a motion in the cause, it has characteristics of both a motion and a petition.12
It is like a traditional motion in that it is filed in the existing incompetency proceeding and a
new special proceeding file is not opened for the restoration action.13 It is like a petition in that
a written filing is required,14 it must be served by the petitioner in accordance with Rule 4 of
the North Carolina Rules of Civil Procedure,15 the document initiates the restoration proceed-ing,
and the proceeding has a separate burden of proof that, if met, resolves the case upon the
merits.16
While this language understandably creates some confusion, it is helpful to understand that
it does not matter whether the document presented for filing is called a motion or a petition. A
person may file any written document, whether handwritten or typed, to petition for restoration
as long as the document contains:
(a) a statement that indicates that the filing party is seeking restoration of competency for an
identifiable ward previously adjudicated incompetent under G.S. Chapter 35A,17
(b) facts tending to show that the ward is competent,18 and
(c) a verification.19
Once a document that includes all three elements is filed, the clerk will treat it as a motion in
the cause.20 Below is a more detailed discussion of these three required elements. Reflecting the
language used in the statute, this bulletin will refer to the document to be filed as a motion and
the person filing the motion as the petitioner.
1.a. A Statement Seeking Restoration for an Identifiable Ward
The first requirement of a restoration motion is relatively easy to satisfy. If the clerk understands
from reading the document that the filing party would like the clerk to consider restoring a
ward’s competency, it is likely that the first requirement has been met. Generally, under North
Carolina law, pleadings and motions are interpreted liberally for purposes of initiating an
action or raising an issue before the court, particularly when an unrepresented litigant is the
12. A historical underpinning for this confusion may be the fact that, prior to 1987, initiating a res-toration
action required the filing of a petition for restoration. See G.S. 35-4 (1986) (“When any insane
person or inebriate becomes of sound mind and memory or becomes competent to manage his property
. . . a petition on behalf of such person may be filed before the clerk . . . ”); G.S. 35-1.39(a) (1986) (“The
guardian, ward or any other interested person may file a petition with the clerk who appointed the guard-ian
for the restoration of the ward to competency.”).
13. See G.S. 35A-1130(a).
14. Id. Unlike motions, which sometimes may be made orally to a court, a written filing is required by
statute to petition for restoration. Id. A request for restoration may not be made to the court informally
by oral motion during a hearing. Id.
15. See G.S. 35A-1130(b).
16. See G.S. 35A-1130(d).
17. See generally G.S. 35A-1130. See also G.S. 1A-1, Rule 8 (requiring pleadings to contain a short and
plain statement of the claim for relief); id., Rule 7(b)(1) (requiring motions to state with particularity the
grounds therefor).
18. See G.S. 35A-1130(a).
19. Id. (stating that “the motion shall be verified”).
20. Id.
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© 2015 School of Government. The University of North Carolina at Chapel Hill
filing party.21 Therefore, when determining whether a filing is sufficient to initiate an action, a
considerable amount of leeway should be afforded to the filing party.22 This is to allow the party
the opportunity to prove his or her case at the hearing rather than restrict his or her access to
restoration based on the technicalities of the documents filed.23
1.b. Facts Tending to Show Competency
The motion initiating the restoration proceeding must contain facts tending to show
competency.24 These facts may include, but are not limited to, a description through anecdotes
or statements of the ward’s ability to manage his or her affairs or to make and communicate
decisions regarding the ward’s finances, nutrition, personal hygiene, health care, personal safety,
employment, and residence.25 Examples of various statements tending to show competency can
be found on the Administrative Office of the Courts Form AOC-SP-208, Guardianship Capacity
Questionnaire.26
The motion does not have to contain all of the facts and evidence necessary to meet the bur-den
of proof required for a restoration order.27 There is a significant gap between what a party
must include in a motion for the purpose of initiating a restoration action and what a petitioner
must prove at a hearing on restoration to obtain a restoration order. The petitioner is afforded
the opportunity to fill that gap and meet the burden of proof at the hearing through the presen-tation
of evidence, including oral testimony and written exhibits. Thus, the motion for resto-ration
does not have to contain enough facts and evidence in and of itself to prove the ward’s
competency. It simply must include some facts tending to show competency.28
1.c. Verification
Any document filed for the purpose of initiating a restoration proceeding must be verified.29
Verification serves two key purposes. First, it binds the person filing the document under oath
to his or her statement of facts, subject to the penalty of perjury for any falsity.30 As one court
noted, a verification is a reasonable method of assuring that the court exercises power only when
an identifiable person “vouches for the validity of the allegations.”31 Second, and equally impor-tant,
a proper verification is necessary in certain actions to invoke the subject matter jurisdic-tion
of the court over the matter.32
21. See generally 1 G. Gray Wilson, North Carolina Civil Procedure § 7-4 (motions), § 8-1
(pleadings) (3d ed. 2007).
22. See id.
23. See id.
24. See G.S. 35A-1130(a).
25. See generally Administrative Office of the Courts, Form AOC-SP-208, Guardianship Capacity
Questionnaire, www.nccourts.org/Forms/Documents/846.pdf.
26. See id.
27. To obtain restoration of competency for the ward, the petitioner must prove by a preponderance
of the evidence that the ward is competent. See G.S. 35A-1130(d). This burden of proof is discussed in
greater detail in question 8, below.
28. See G.S. 35A-1130(a).
29. See id.
30. See G.S. 1A-1, Rule 11(b). See also 1 Wilson, supra note 21, § 11-5.
31. See In re T.R.P., 360 N.C. 588, 592 (2006).
32. See id. at 590–91 (noting that for certain actions created by statute, the requirement that pleadings
be signed and verified is not a matter of form but of substance and that a defect therein is jurisdictional).
Restoration to Competency under G.S. 35A-1130: Common Issues and Questions 5
© 2015 School of Government. The University of North Carolina at Chapel Hill
To properly verify the motion, the petitioner must follow three steps. First, the motion must
contain a statement that is substantially similar to the following:
The contents of the [document] verified are true to the knowledge of the person
making the verification, except as to those matters stated on information and
belief, and as to those matters he or she believes them to be true.33
Second, the person filing the motion for restoration must swear to this or a similar state-ment
under oath before a notary public or other officer of the court authorized to administer
oaths, such as a magistrate, judge, or clerk of superior court.34 To properly administer the oath,
the notary or other authorized officer must be able to certify that at a single time and place the
petitioner:
1. appeared in person before the notary,
2. was personally known to the notary or identified by the notary
through satisfactory evidence, such as a driver’s license, and
3. made a vow of truthfulness on penalty of perjury while invoking
a deity or using any form of the word “swear.”35
For the third and final step, the notary then notarizes the motion. The notary certification
must contain at least the following information:36
1. the name of the petitioner who appeared in person before the notary unless
the name of the petitioner is otherwise clear from the record itself,
2. an indication that the petitioner signed the document and certified to the notary
under oath or affirmation the truth of the matters stated in the document,
3. the date of the oath or affirmation,
4. the signature and seal or stamp of the notary who took the oath or affirmation,
5. the notary’s commission expiration date.
A restoration proceeding is statutory in nature, and the requirements for verification are governed by the
restoration statute. G.S. 35A-1130(a). A more detailed discussion of whether questions of subject matter
jurisdiction are triggered by the restoration motion is set forth in question 2, below.
33. See G.S. 1A-1, Rule 11(b); id., Rule 7(b)(2) (stating that the rules applicable to captions, signing, and
other matters of form of pleadings apply to all motions and other papers provided for by these rules). See
also In re the Triscari Children, 109 N.C. App. 285, 287 (1993) (holding that, in the context of a termina-tion
of parental rights proceeding, where a chapter requires a verified petition, and verification is not
defined in the chapter, “the requirements for verification established in chapter 1A, Rule 11(b) should
determine whether the pleading has been properly verified”); State v. Johnson, 198 N.C. App. 138, 140–41
(2009) (adopting the holding of Triscari Children and stating that in the absence of specific requirements
for a verified petition in a child custody case under G.S. Chapter 52C, the requirements for verification
established by N.C. Rule of Civil Procedure 11(b) apply).
34. See G.S. 1A-1, Rule 11(b); G.S. 1-148. See also 1 Wilson, supra note 21, § 11-7.
35. G.S. 10B-3(14).
36. See G.S. 10B-40(d). Pursuant to G.S. 10B-40(d), the notary certification is acceptable also if it is in
the form set forth in G.S. 10B-43, which contains all of the information required under G.S. 10B-40(d)
as well as some additional information, such as the county and state where the notary notarized the
document.
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An example of a valid verification can be found on page 3 of Form AOC-SP-200, the Petition
for Adjudication of Incompetence and Application for Appointment of Guardian or Limited
Guardian and Interim Guardian.37 A copy of this verification is set forth in Figure 1, above.
In contrast, Form AOC-E-415, the Motion in the Cause to Modify Guardianship, does
not contain a valid verification because the signature block requires only the signature of the
petitioner and a notary.38 This form is regularly relied upon in guardianship cases to modify an
existing guardianship. Although the form is not drafted to specifically address a motion for res-toration,
the petitioner can adapt the form to satisfy the requirements of a restoration motion.
First, the petitioner could check the “Other/Comment” box on page 1 of the Form AOC-E-415
and write “enter an order for restoration to competency” to identify the relief requested. Second,
the petitioner could notify the court that he or she is seeking to prove that the ward is com-petent
by checking off the relevant competencies listed on page 2. Third, the petitioner could
include any additional facts showing competency on page 3. Finally, the petitioner should attach
a separate verification to the form to properly verify the document before filing it similar to
Form AOC-SP-200, discussed above.
2. What happens if a motion for restoration is filed and it does
not contain the required elements to initiate an action?
The hearing clerk39 should analyze a motion for restoration after it is filed and before the hearing
to ensure it complies with the requirements set forth in question 1, above. If the hearing clerk
determines it is not clear that the petitioner is seeking restoration for an identifiable ward, or if
37. See Administrative Office of the Courts, Form AOC-SP-200, Petition for Adjudication of Incompe-tence
and Application for Appointment of Guardian or Limited Guardian and Interim Guardian, www.
nccourts.org/Forms/Documents/707.pdf.
38. See Martin v. Martin, 130 N.C. 27, 28 (1902) (holding that the phrase “sworn and subscribed to”
is defective as a verification); In re the Triscari Children, 109 N.C. App. 285, 287 (holding that petitions
with only a signature and notary notarizing the signature were not in compliance with the statute requir-ing
them to be verified).
39. The clerk at the counter who accepts filings does not review the motion to determine whether
it meets the legal standard to initiate a restoration action. The clerk at the counter accepts the motion
Figure 1. Form of Proper Verification (from page 2 of Form AOC-SP-200)
Restoration to Competency under G.S. 35A-1130: Common Issues and Questions 7
© 2015 School of Government. The University of North Carolina at Chapel Hill
the motion does not contain facts tending to show competency, the hearing clerk may give the
petitioner an opportunity to file an amendment to the motion to fix the deficiency in the filing
prior to the hearing.40 However, if the motion filed is missing or lacks a proper verification, it is
less clear whether the hearing clerk may give the petitioner an opportunity to amend the motion
to correct or add the verification without potentially voiding any subsequent order entered in
the proceeding. Where a motion lacks a proper verification, the best practice, as evidenced by
the discussion below, is for the clerk to dismiss the motion without prejudice and for the peti-tioner
to re-file a new motion with a proper verification.
As noted above, a proper verification is necessary to invoke the subject matter jurisdiction of
the court if an action is statutory in nature and the statute requires a verification.41 If a motion
for restoration is missing a verification or contains an invalid verification and the clerk subse-quently
enters an order in that proceeding, the order may be void and could later be vacated
on appeal.42 It is advisable for the clerk to review the verification to ensure that the motion is
and clocks it in even if there appear to be deficiencies in the motion. The motion is then reviewed by the
elected clerk or assistant clerk with the judicial authority to preside over the hearing on restoration. This
is because the determination of whether the motion or other document filed meets the legal standard for
initiating the restoration action is a judicial decision. It is not a decision to be made by a clerk accepting
filings at the counter and acting in an administrative capacity.
40 See In re T.B., 177 N.C. App. 790, 793 (2006) (holding that where a statute required the petition
to terminate parental rights to include a copy of the custody order, the omission of the order need not
have been fatal to subject matter jurisdiction if the petitioner had remedied the defect by amendment or
later production of the order). See also In re T.M.H., 186 N.C. App. 451, 455 (2007) (noting in a termina-tion
of parental rights case that a violation of the statutory verification requirement was a jurisdictional
defect per se and that other requirements, such as the petition or motion not including facts sufficient to
warrant a determination, are not a defect per se). Because the motion must be in writing, it is advisable
that the amendment also be in writing, particularly if the purpose of the amendment is to address defects
related to the statutory requirements of the restoration motion.
41. See Boyd v. Boyd, 61 N.C. App. 334, 336 (1983) (holding that a proper verification at the time of fil-ing
is mandatory for jurisdiction when required by statute); Fansler v. Honeycutt, 221 N.C. App. 226, 228,
728 S.E.2d 6, 8 (2012) (stating that “[i]f an action is statutory in nature, the requirement that pleadings be
signed and verified is not a matter of form, but substance, and a defect therein is jurisdictional”). Subject
matter jurisdiction is the court’s or the clerk’s authority to hear and enter orders in a case. See Haker-
Volkening v. Haker, 143 N.C. App. 688, 693 (2001). The clerk has original jurisdiction over restoration
proceedings pursuant to G.S. 35A-1103(a).
42. See In re the Triscari Children, 109 N.C. App. 285 (vacating a termination of parental rights order
for lack of subject matter jurisdiction because the petition was not verified); In re Green, 67 N.C. App. 501
(vacating and dismissing a juvenile abuse and neglect case for want of subject matter jurisdiction because
the department of social services representative failed to verify the petition). See also State ex rel. Hanson
v. Yandle, 235 N.C. 532, 535 (1952) (citations omitted) (“A lack of jurisdiction or power in the court enter-ing
a judgment always avoids the judgment, and a void judgment may be attacked whenever and wherever
it is asserted”).
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properly verified,43 even if the parties do not raise the issue to the court.44 Furthermore, the
North Carolina Supreme Court has held that an invalid or missing verification may not be cured
by consent of the parties.45
Although there are no North Carolina cases that address the requirement that a restoration
motion under G.S. Chapter 35A be verified, there are a number of cases in the juvenile arena
where the court vacated orders for abuse, neglect, dependency, and the termination of parental
rights when the petitions or motions46 in those cases were not properly verified.47 These juvenile
cases are similar to an action for restoration in that the relative underlying statutes each require
verification of the petition or motion initiating the proceeding.48 In In re T.R.P., the North Caro-lina
Supreme Court held that a challenge to subject matter jurisdiction could not be waived and
quoted other court decisions that held that defects in jurisdiction such as an invalid or missing
verification may not be “cured by waiver, consent, amendment, or otherwise.”49
However, in the case of Estate of Livesay, the North Carolina Court of Appeals upheld an
amendment to a complaint in a civil action where the sole purpose of the amendment was
to add a signature and verification by the petitioner, which was lacking in the originally filed
complaint.50 The court in Livesay stated that the amended complaint, which was identical to
the original complaint except that it added a signature and proper verification, was an effective
remedy to give the court subject matter jurisdiction.51 In its holding, the court stated that Rule
11 of the N.C. Rules of Civil Procedure allows prompt remedial measures to fix the lack of a sig-nature
and/or verification in the original pleading, thereby rectifying the omission and restoring
the subject matter jurisdiction of the court.52 Although the underlying facts of the case related
to a signature by an attorney or a party under Rule 11(a), which specifically allows for remedial
43. The court has an inherent power to inquire into and determine whether it has subject matter juris-diction.
See In re McKinney, 158 N.C. App. 441, 448 (2003). In at least one other case where verification
of the petition is required by statute, the North Carolina Court of Appeals suggested that the trial judge
check the petition to make sure it is both signed and verified before proceeding with a hearing. See In re
D.D.F., 187 N.C. App. 388, 397 (2007).
44. See Feldman v. Feldman, 236 N.C. 731, 734 (1953) (stating that “[j]urisdiction rests upon the law
and the law alone. It is never dependent upon the conduct of the parties”).
45. See In re Sauls, 270 N.C. 180, 186 (1967) (citations omitted) (holding that subject matter jurisdic-tion
“cannot be conferred upon a court by consent, waiver or estoppel, and therefore failure to . . . object
to the jurisdiction is immaterial”). See also Anderson v. Atkinson, 235 N.C. 300, 301 (1952).
46 A termination of parental rights proceeding may be initiated by petition or motion (G.S. 7B-1104),
but an abuse, neglect, and dependency action may only be initiated by a petition (G.S. 7B-401, -405).
47. See generally In re T.R.P., 360 N.C. 588 (2006).
48. See G.S. 7B-403(a) (requiring that to initiate a case for the abuse, neglect, or dependency of a
juvenile, “the petition shall be drawn by the director, verified before an official authorized to administer
oaths, and filed by the clerk, recording the date of filing” (emphasis added)); G.S. 7B-1104 (requiring that
to initiate a termination of parental rights proceeding the “petition or motion . . . shall be verified by the
petitioner or movant” (emphasis added)). See also In re C.M.H., 187 N.C. App. 807, 808 (2007) (hold-ing
that an unverified motion to terminate parental rights violated the verification requirement of G.S.
7B-1104 and left the trial court without subject matter jurisdiction).
49. 360 N.C. 588, 595 (2006) (quoting Anderson v. Atkinson, 235 N.C. 300, 301 (1952)).
50. 219 N.C. App. 183, 190 (2012).
51. Id. at 187.
52. Id. at 186.
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© 2015 School of Government. The University of North Carolina at Chapel Hill
measures, the court’s holding seemed to discuss Rule 11 more generally, including actions such
as restoration, where a statute requires verification of a pleading by a party under Rule 11(b).53
There is at least one other case, Alford v. Shaw, where the North Carolina Supreme Court held
that a party could amend the initial pleading to add the missing the verification.54 In that case,
Rule 23(b) of the N.C. Rules of Civil Procedure required the petition to be verified.55 The court
in Alford limited its holding, noting that Rule 23(b) addresses the procedure to be followed in,
and not the substantive elements of, a shareholder’s derivative suit and, therefore, the plaintiffs’
failure to comply with the verification requirement at the time the complaint was filed was not a
jurisdictional defect.56
In contrast to the decisions in Livesay and Alford, the North Carolina Court of Appeals,
in the context of the divorce proceeding Boyd v. Boyd, upheld the decision of a trial court to
dismiss the proceeding without prejudice where the plaintiff filed an unverified complaint and
a few days later verified the complaint.57 The court looked to the governing divorce statute for
guidance, and it required verification of a divorce complaint.58 Given the statutory language,
the court held that where a statute requires verification for a complaint to be valid, the com-plaint
must be verified at the time it is filed in accordance with Rule 11 of the N.C. Rules of Civil
Procedure.59 If it is not, then the complaint is not valid and the court never obtained jurisdiction
over the case.60 The court further stated that “[t]he want of a proper verification is a fatal defect,
and is a cause for dismissal of the action.”61 The court advised that the plaintiff would have been
better off taking a voluntary dismissal without prejudice and re-filing the action at the point in
time when the issue with the verification arose.62 The court did not expressly address whether
the plaintiff could have amended the original complaint to fix the mistake.63
One distinction between In re T.R.P. and Boyd on one side and Livesay and Alford on the
other is that Livesay and Alford both dealt with civil actions where there was no specific require-ment,
outside of the N.C. Rules of Civil Procedure, that the motion or petition be verified. In
T.R.P. and Boyd, the statutes that served as the basis for the actions required the respective
filings initiating the actions to be verified.64 An action for restoration is more akin to these types
of proceedings because the underlying statute in a restoration proceeding, G.S. 35A-1130(a),
requires that the motion initiating the action be verified. Therefore, Livesay and Alford serve as
some authority for the clerk to allow a party that filed a motion for restoration with a missing
or invalid verification to remedy the error by amending the motion to include a valid verifica-
53. The court in Livesay referenced the North Carolina Supreme Court’s decision in In re T.R.P and
interpreted language in T.R.P. to suggest that later filings may be sufficient to invoke the subject matter
jurisdiction of the court and remedy the failure of the petitioner to initially verify the petition. See id. at
190.
54. 327 N.C. 526, 533 (1990).
55. Id.
56. See 327 N.C. 526, 531 (1990).
57. 61 N.C. App. 334, 336 (1983).
58. Id. at 335.
59. Id. at 335–36.
60. Id. at 336.
61. Id. (citation omitted).
62. Id.
63. See generally id.
64. Id. at 335. See also supra note 48.
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tion. However, because orders entered by a court that lacks subject matter jurisdiction are void,
the safest practice where a motion lacks a proper verification in light of T.R.P. and Boyd may be
for the clerk or the petitioner to dismiss the motion without prejudice and for the petitioner to
re-file the action with a properly verified motion.65 If the matter is dismissed, the petitioner will
have to pay another filing fee once the petitioner re-files the motion for restoration.
3. Is a medical report or doctor’s note required to file for restoration?
If the guardian, the guardian ad litem, or the clerk wants to obtain
medical records or other medical evidence regarding the ward’s
condition, how does he or she go about obtaining them?
A medical report, doctor’s note indicating the ward is competent, or other statement or docu-mentation
from a medical or mental health professional is not required to file a motion for
restoration.66 As long as the motion meets the requirements set forth in question 1 above, it is
sufficient to initiate a restoration proceeding.
When the ward will not or does not produce his or her own medical records as evidence,
there are three primary ways to obtain medical records and other medical evidence in a resto-ration
proceeding; these include (a) from the guardian, (b) from the guardian ad litem, and (c)
pursuant to a multidisciplinary evaluation (MDE) ordered by the clerk.
65. See Boyd, 61 N.C. App. at 336 (affirming the trial court’s dismissal of the plaintiff’s divorce action
because the complaint was not properly verified but noting that nothing prevented the plaintiff from
re-filing the action). Furthermore, Rule 15 of the N.C. Rules of Civil Procedure governs amendment of a
pleading. G.S. 1A-1, Rule 15. Because it is not clear that a motion filed to restore competency is a plead-ing,
Rule 15 may not apply to the amendment of the restoration motion. G.S. 35A-1130. Rule 15 allows a
pleading to be amended once any time before a responsive pleading is served without leave of the court
or by written consent of the adverse party. G.S. 1A-1, Rule 15(a). A claim asserted in an amended plead-ing
relates back to the time of filing. Id., Rule 15(c). If Rule 15 does not apply, then it cannot provide the
basis for relating the amended motion back to the time of the filing and thus remedying the jurisdictional
issue. If Rule 15 does apply, it is questionable whether the verification in the amended motion relates back
to the time of filing, as the relation-back mechanism under Rule 15(c) applies to a new “claim” asserted
in an amended pleading. Id., Rule 15(c). Because incompetency and restoration proceedings are special
proceedings, it is not clear whether Rule 15 applies. Pursuant to G.S. 1-393, the Rules of Civil Procedure
are applicable to special proceedings, except as otherwise provided. G.S. 35A-1102 provides that Article
1 of G.S. Chapter 35A establishes the exclusive procedure for adjudicating a person to be an incompetent
adult. In one case, the North Carolina Court of Appeals interpreted this language to mean that any adju-dication
of incompetency must take place within the “perimeters” of Chapter 35A. See Culton v. Culton,
96 N.C. App. 620, 622 (1989). The General Assembly later amended the statute to make clear that this
does not interfere with the authority of a judge to appoint a guardian ad litem for a party under Rule 17(b)
of the N.C. Rules of Civil Procedure. G.S. 35A-1102. Therefore, there is some argument that the language
of G.S. 35A-1102 does not preclude the applicability of the Rules of Civil Procedure to incompetency pro-ceedings
where Chapter 35A does not otherwise set forth a specific procedural requirement.
66. See generally G.S. 35A-1130.
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3.a. Guardian Obtains Medical Records
The guardian of the person and the general guardian67 generally have the authority to obtain
medical records of the ward without a subpoena or any other court process, unless the order
appointing the guardian provides otherwise.68 It is advisable and helpful to the clerk for the
guardian to appear with these records at the restoration hearing if they are relevant to the
ward’s competency.69
3.b. Guardian Ad Litem Obtains Medical Records
In contrast, the guardian ad litem appointed by the clerk for purposes of the restoration pro-ceeding
does not have a right to obtain the ward’s medical records without the guardian’s
written authorization, provided the guardian is authorized to make health care decisions for
the ward. However, the guardian ad litem can seek an order from the court to obtain them.70
Although these types of medical records typically contain privileged information, such as infor-mation
protected by a physician-patient privilege or psychologist-patient privilege,71 the court
can enter an order compelling the disclosure of privileged information provided the court finds
that the records are necessary for the proper administration of justice.72 The statute dealing
with the disclosure of records subject to privilege states that if the case is in district court, the
judge compelling the disclosure shall be a district court judge and that if the case is in superior
court, the judge compelling the disclosure shall be a superior court judge.73 The statute does not
address who can compel disclosure if the case is before the clerk. Because clerks have original
67. A health care agent appointed pursuant to a valid power of attorney that has not been suspended
likely has the authority to obtain medical records on behalf of the ward, provided the health care power
of attorney provides such authority to the agent. A guardian of the person or general guardian must file a
separate proceeding to suspend a health care power of attorney after the appointment of the guardian of
the person or general guardian. See G.S. 32A-22.
68. See G.S. 35A-1241. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) gives
individuals the right of access to their medical records in most circumstances. 45 C.F.R. § 164.524. The
right of access may be exercised by an individual’s personal representative if the individual is incompe-tent.
45 C.F.R. § 164.502(g). A guardian of the person or general guardian who has been authorized to
make health care decisions for a ward is a personal representative for HIPAA purposes.
69. The guardian has a duty to seek restoration and to provide for the ward’s best interests. See supra
note 7.
70. It is advisable for the guardian ad litem to locate and identify any relevant medical records or other
health information prior to the hearing. Once the information is located, the guardian ad litem may file
a motion requesting that the clerk enter an order compelling the disclosure of the records. Most federal
and state confidentiality laws permit the disclosure of information pursuant to a court order. In order to
avoid the additional restrictions and regulations imposed by HIPAA, it is advisable not to seek a sub-poena
of the records but instead to seek directly an order from the court compelling the disclosure of the
records. 45 C.F.R. § 164.512(e). HIPAA expressly permits disclosure of protected health information for
court proceedings pursuant to a court order. Id. There is one exception to this general rule. If the court
order is for information maintained by a substance abuse program and the program is required to com-ply
with the federal substance abuse confidentiality regulations in 42 C.F.R. part 2, the court order must
be accompanied by a subpoena. See 42 C.F.R. pt. 2.
71. See G.S. 8-53, -53.3.
72. Id. Typically, the court is granted wide discretion in determining what is necessary for the proper
administration of justice for the purpose of compelling the disclosure of medical records subject to privi-lege.
See State v. Westbrook, 175 N.C. App. 128, 131 (2005).
73. See G.S. 8-53, -53.3.
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and exclusive jurisdiction in all matters related to incompetency of an adult under G.S. Chapter
35A, it is likely that the clerk does have the authority to compel the disclosure of these records,
but, as noted, the statute on disclosure does not make that clear.
3.c. The Clerk Orders an MDE
If the clerk determines that evidence related to the ward’s medical condition is necessary to his
or her decision, the clerk may order an MDE on the clerk’s own motion or on the motion of any
party to the proceeding.74 An MDE is an evaluation that contains current medical, psychologi-cal,
and social work evaluations as directed by the clerk and may include evaluations of other
professionals in other disciplines, such as occupational therapy, psychiatry, and vocational
therapy.75 The MDE is current if it was conducted “not more than one year from the date on
which it is presented to or considered by the court.”76 The MDE must set forth the nature and
extent of the ward’s disability and recommend a guardianship plan or program.77 This may
include a treatment plan, steps for attaining restoration, and assessments by professionals of
whether or not restoration is appropriate given the ward’s condition.78 An MDE may be helpful
in those restoration cases where there is insufficient or conflicting evidence regarding the ward’s
capacity, when it appears that limited guardianship may be appropriate instead of restoration, or
when additional information is needed to modify or develop an appropriate guardianship plan.
G.S. 35A-1130 regarding restoration does not specifically set out details related to the
ordering, completion, and maintenance of the MDE in the court records.79 The clerk or any
party requesting an MDE may do so by using Form AOC-SP-901M, the Request and Order
for Multidisciplinary Evaluation, developed to request an MDE in the original incompetency
proceeding.80 Because the statute on restoration is silent as to the details of the MDE, the clerk
should include in the MDE order the following information, even in the absence of a request by
a party:
74. See G.S. 35A-1130(c).
75. See G.S. 35A-1101(14).
76. See id. A new or updated MDE should be ordered by the clerk if (i) the motion for restoration is
filed within one year of an adjudication of incompetency, (ii) an MDE was obtained during the course of
the proceeding to adjudicate a ward incompetent, and (iii) an MDE is requested in connection with the
restoration proceeding.
77. See G.S. 35A-1101(14).
78. Id.
79. A party’s request for an MDE in the original incompetency proceeding must be filed with the
clerk within ten days after service of the incompetency petition. See G.S. 35A-1111(a). This may provide
some guidance to the clerk when considering the timeliness of a request for an MDE by a party to the
restoration proceeding. Although there is no hard-and-fast rule in the restoration statute, the clerk may
decide that a request is not timely if it was made at the hearing on restoration, immediately preceding the
hearing on restoration, or substantially outside of ten days from the filing of the motion for restoration.
There is no time limit on the clerk’s authority to order an MDE. See G.S. 35A-1130. It is always within the
clerk’s discretion whether or not to order an MDE. See G.S. 35A-1130(c) (“the clerk may order a multidis-ciplinary
evaluation”).
80. See Administrative Office of the Courts, Form AOC-SP-901M, Request and Order for Multidisci-plinary
Evaluation, www.nccourts.org/Forms/Documents/668.pdf .
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1. the state or local human services agency ordered to prepare the report,
2. the deadline for filing the MDE with the court if different from the thirty
days set forth in the form,
3. the parties entitled to receive copies of the MDE,
4. a statement that the contents should be revealed only as directed by the
clerk and that the MDE will not be a public record,
5. a request that the agency identify whether and to what extent restoration is
appropriate and whether a limited guardianship may be appropriate instead, and
6. the party or entity charged with paying the costs of the MDE (see below).81
While the law does not specify where the clerk should file the MDE, it would be logical to file
it in the incompetency file upon receipt from the agency that prepared it.82 The Administrative
Office of the Courts suggests that the copy of the MDE that is filed with the clerk be placed in a
sealed envelope marked “Multidisciplinary Evaluation: Do Not Open.”83
As noted above, the statute on restoration also does not specify who pays the costs of an
MDE.84 In the clerk’s order on restoration, the clerk should include how the costs of the MDE
are to be paid. If the clerk follows a pattern similar to how the costs are taxed in the original
incompetency proceeding, the costs of the MDE would be taxed as follows in the restoration
proceeding:
•• If the clerk enters an order in favor of the petitioner and the ward is not indigent, the ward
pays the costs of the fees.
•• If the clerk enters an order in favor of the petitioner and the ward is indigent, the
Department of Health and Human Services (DHHS) pays the fees.
•• If the clerk denies the motion but finds there were reasonable grounds to bring it, the costs
may be taxed against the petitioner, the ward if not the petitioner, or DHHS, in the clerk’s
discretion.
•• If the clerk denies the motion and finds that there were no reasonable grounds to bring the
motion, the costs are taxed against the petitioner.85
81. See G.S. 35A-1111(a) and (b) (related to an MDE ordered in the original incompetency and guard-ianship
proceeding before the clerk).
82. See G.S. 35A-1130 (a motion for restoration proceedings is filed in the original incompetency spe-cial
proceeding file).
83. See Saxon, supra note 1, § 5.9-D, at 62.
84. See G.S. 35A-1130.
85. See G.S. 35A-1116(b). G.S. 35A-1116(b) sets forth how the costs of an MDE ordered pursuant to
G.S. 35A-1111 in the original incompetency proceeding shall be assessed; it does not clearly extend to an
MDE ordered pursuant to G.S. 35A-1130 in the restoration proceeding. Except as otherwise set forth in
G.S. 35A-1116, costs under G.S. Chapter 35A are assessed as in special proceedings. G.S. 35A-1116(a) and
(d). Under G.S. 7A-306(c), certain costs in special proceedings, such as witness fees and court appointees,
are assessable as provided by law; there is no express provision for a court-ordered MDE.
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4. Does the petitioner have to have an attorney to file a motion for restoration?
The guardian, the ward, or any other interested person who petitions for restoration does not
need to have any attorney to file the motion or appear at the hearing on restoration. There is one
exception to this rule. If the petitioner is a corporation, including nonprofit corporations, or a
limited liability company, the petitioner must be represented by a duly-admitted and licensed
attorney.86 An officer, shareholder, or other agent of the corporation or limited liability company
that is not a lawyer may not file or appear in court proceedings on the entity’s behalf.87 There-fore,
if a corporate guardian desires to file for restoration, it may do so only through an attorney.
In the event a corporation or other entity files for restoration without an attorney, the party
may be able to cure the defect. The North Carolina Court of Appeals seemed to indicate in at
least one case that the defect of filing by a non-attorney party on an entity’s behalf could later be
cured if an attorney appeared at the hearing on behalf of the petitioning entity.88
5. To file a motion for restoration, does the ward have to be able to write or read the
motion?
No. There is no literacy prerequisite to petitioning for restoration, and the ward may receive
assistance in preparing and filing the motion and presenting his or her case at the hearing
before the clerk. Whether a ward can read and/or write is not determinative of legal competency
under G.S. Chapter 35A.
6. Once a motion or other document is filed initiating the proceeding, when is the
hearing held, what is the process for service, and who receives notice of the filing?
Once the motion for restoration is filed, the clerk schedules the matter for hearing. The hearing
date should not be less than ten days nor more than thirty days from the date that the motion
and notice of hearing are served on the ward and the guardian. The clerk may alter this timeline
86. See Lexis-Nexis v. Travishan Corp., 155 N.C. App. 205, 209 (2002) (holding that a corporation
must be represented by an attorney and cannot be represented by an agent of the corporation, such as
an officer or shareholder); Bodie Island Beach Club Ass’n, Inc. v. Wrap, 215 N.C. App. 283, 290 (2011)
(extending the application of Lexis-Nexis to limited liability corporations); Willow Bend Homeowners
Ass’n, Inc. v. Robinson, 192 N.C. App. 405, 414 (2008) (acknowledging that nonprofit corporations also
must be represented by an attorney).
87. See G.S. 84-5 (“It shall be unlawful for any corporation to practice law or appear as an attorney
for any person in any court in this State . . . ”); Lexis-Nexis, 155 N.C. App. at 209. There are some excep-tions
to this general rule. For example, a corporation may prepare legal documents. See State v. Pledger,
257 N.C. 634, 637–38 (1962). In addition, a corporation may process litigation without an attorney in a
small claims action. See Duke Power Co. v. Daniels, 86 N.C. App. 469, 472 (1987). Finally, a corporation
may make an appearance in court through its vice president to avoid default. See Roland v. W & L Motor
Lines, Inc., 32 N.C. App. 288, 290 (1977).
88. See Reid v. Cole, 187 N.C. App. 261, 265 (2007) (affirming the ruling of a trial court which allowed
the plaintiff estate administrator to file a pleading on behalf of the estate without an attorney given that
the plaintiff later retained counsel and appeared by counsel in subsequent proceedings).
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© 2015 School of Government. The University of North Carolina at Chapel Hill
for good cause.89 For example, if the clerk orders an MDE and the professionals completing the
MDE need additional time, the clerk may find good cause to extend the hearing date to a time
outside of thirty days from the service of the motion.
It is the petitioner’s obligation under the statute to serve the motion for restoration. The peti-tioner
must serve notice of the hearing and a copy of the motion for restoration on:
1. the guardian, if the guardian is not the petitioner;
2. the ward, if the ward is not the petitioner; and
3. any other party to the original incompetency proceeding.90
The petitioner is required to serve the notice of hearing and motion for restoration on these
parties pursuant to Rule 4 of the N.C. Rules of Civil Procedure.91 If the ward is not the petitioner,
the ward must be served with the notice of hearing and motion in the same manner as a person
not under a disability is served.92 This includes service by any one of following methods:
•• personal delivery to the ward by someone authorized to serve process;
•• leaving copies at the ward’s home or usual place of abode with some person of suitable age
and discretion residing there;
•• delivering copies to an agent authorized to accept service of process on behalf of the ward;
•• mailing copies via registered or certified mail, return receipt requested, addressed to the
ward, and delivering to the ward;
•• mailing copies by U.S. Postal Service with signature confirmation, addressed to the ward,
and delivering to the ward; or
•• depositing with a designated delivery service, addressed to the ward, delivering to the ward,
and obtaining a delivery receipt.93
89. See G.S. 35A-1130(b).
90. See id. Parties to the original incompetency proceeding include the original petitioner and the
respondent/ward. The ward’s next of kin and any other interested party who received notice of the
original incompetency proceeding also may be entitled to notice. See In re Ward, 337 N.C. 443, 447
(1994) (holding that where a determination of the incompetency of a party to a lawsuit effects the tolling
of an otherwise expired statute of limitations, the interest of the opposing party to the lawsuit entitles
that party to notice of the incompetency proceeding); In re Winstead, 189 N.C. App. 145, 149–50 (2008)
(holding that a next of kin who received notice of the original incompetency proceeding was entitled
to appeal the incompetency determination as an aggrieved party). The question raised by these deci-sions
is whether next of kin and interested persons are entitled to notice of the restoration proceed-ing
and whether they must be served with the restoration motion pursuant to Rule 4 of the N.C. Rules
of Civil Procedure, which is required for parties to the original incompetency proceeding under G.S.
35A-1130(b), or pursuant to Rule 5, which is the same manner they are served in the original incompe-tency
proceeding under G.S. 35A-1109. It is likely that a clerk may conclude that next of kin and inter-ested
parties are not parties to the original incompetency proceeding, even though they may be entitled
to notice of the original action and have standing to appeal an incompetency proceeding, because they
are not entitled to present evidence under G.S. 35A-1112(b) and require Rule 5 service only in the resto-ration
proceeding.
91. See G.S. 35A-1130(b).
92. See G.S. 1A-1, Rule 4(j)(2).
93. See id., Rule 4(j)(1). The requirements of service of process under Rule 4 of the N.C. Rules of Civil
Procedure are technical; refer to Rule 4 and related case law for additional analysis and details.
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In addition, because at the time of the filing it is known that the ward is under a guardian-ship,
the rule requires that the ward’s guardian be served by one of the methods listed above in
order to effectuate proper service on the ward.94 The guardian is also required to be served pur-suant
to G.S. 35A-1130(b). If the guardian is served with the notice of hearing and the motion by
one of the means listed above, that is sufficient to satisfy the requirements of serving the ward
under Rule 4 and the guardian under G.S. 35A-1130(b). The guardian does not have to be served
twice.
7. May the clerk appoint a guardian ad litem in the restoration proceeding?
If so, who is responsible for payment of the guardian ad litem fees?
The clerk may appoint a guardian ad litem to represent the ward at the restoration hearing.95 The
clerk will likely appoint the same guardian ad litem from the original incompetency proceeding,
if that attorney is available. However, the clerk is not required to appoint the same guardian ad
litem. During the original incompetency proceeding, the guardian ad litem is charged with pre-senting
the respondent’s express wishes to the court as well as making any recommendations to
the court regarding the respondent’s best interests.96 The statute on restoration does not specify
a role for the guardian ad litem during the restoration hearing that is different from the original
incompetency proceeding. Therefore, the guardian ad litem appointed for a restoration proceed-ing
should likely provide a similar detailed report to the court. It is advisable that the guardian
ad litem deliver the report to the clerk in writing prior to the hearing and provide copies of the
report to each of the parties to the proceeding. As a basis for the report, the guardian ad litem
should (i) meet with the ward in person where the ward lives prior to the hearing, (ii) diligently
work to obtain medical records and other evidence of the ward’s capacity, and (iii) meet with
and interview the ward’s guardian and other family members and interested persons. The report
of the guardian ad litem should also include recommendations to the court regarding limited
guardianship when restoration may not be appropriate.
The ward is entitled to be represented by counsel at the hearing on restoration and may elect
to retain his or her own attorney in addition to any guardian ad litem appointed by the clerk.97
If the ward retains his or her own attorney, the role of the guardian ad litem becomes less clear.
The guardian ad litem should still provide a report to the court that is based on the diligence
described above and include recommendations regarding the ward’s best interests and, if
appropriate, limited guardianship. The counsel hired by the ward will be charged with zealously
representing his or her client and presenting the ward’s express interests to the court.98
94. See id., Rule 4(j)(2)(b).
95. See G.S. 35A-1130(c).
96. See G.S. 35A-1107(b).
97. See id.
98. For a more in-depth discussion of the role of the guardian ad litem, refer to the North Carolina
Guardianship Manual, which provides a lengthy discussion of the dual role of the guardian ad litem and
how that may conflict with retained counsel by the ward. Saxon, supra note 1, chapter 2, at 20–37.
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© 2015 School of Government. The University of North Carolina at Chapel Hill
If the clerk appoints a guardian ad litem, the fees of the guardian ad litem are paid as follows:
•• by the ward, if the ward is not indigent;
•• by the petitioner if relief is not granted and there were no reasonable
grounds to bring the proceeding; and
•• in all other cases, by the Office of Indigent Defense Services.99
8. What is the burden of proof that the petitioner must meet at the hearing for
restoration, and what may the clerk consider in making his or her ruling?
To enter an order restoring competency of the ward, the clerk must find that the ward is compe-tent
by a preponderance of the evidence.100 This means that the clerk must find that the greater
weight of the evidence shows that the ward is competent.101 In other words, the clerk must find
that it is more likely than not that the ward is competent. Preponderance of the evidence is a
lower standard than what is required to adjudicate someone incompetent under G.S. Chapter
35A, which may occur only if there is clear, cogent, and convincing evidence that the ward is
incompetent (see Figure 2, above).102
In considering whether or not the ward is competent, the clerk may consider admissible103
oral testimony and written evidence presented at the hearing. If the evidence submitted by the
99. See North Carolina Office of Indigent Defense Services and Administrative Office of the Courts,
North Carolina Proceedings That Involve Guardians Ad Litem (GALs) (Oct. 2014), www.ncids.org/
Rules%20&%20Procedures/GAL_Chart.pdf.
100. See G.S. 35A-1130(d).
101. See 1 Kenneth S. Broun, Brandis & Broun on North Carolina Evidence § 41 (7th ed.
2011).
102. See G.S. 35A-1112(d). See also In re D.R.B., 182 N.C. App. 733, 735 (2007) (discussing the various
standards of proof and stating that clear, cogent, and convincing evidence is stricter than preponderance
of the evidence but less stringent than beyond a reasonable doubt).
103. A discussion of admissibility of evidence is beyond the scope of this bulletin. In general, the clerk
should not consider inadmissible evidence in making his or her decision regarding restoration. Rules of
Figure 2. Burdens of Proof to Adjudicate Someone Incompetent under Chapter 35A
Preponderance
Clear, cogent,
and convincing
Beyond a
reasonable
doubt
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parties at the hearing includes affidavits, including affidavits from doctors and other medi-cal
professionals, the clerk should be cautious in relying on them in rendering a final deci-sion.
104 The North Carolina Court of Appeals has stated that an affidavit is “inherently weak
as a method of proof.”105 The court noted that affidavits are made without notice to the other
party and under circumstances that afford ample opportunity to lead the person making the
affidavit.106 Furthermore, the affidavit may include only matters that are deemed helpful to the
party who submits the affidavit and may exclude anything negative, contain half-truths, and
omit important matters.107 Most importantly to the court, the statements in the affidavit are
not able to be subjected to the “searching light” of cross-examination, which allows the court
the best opportunity to assess the value of testimony.108 However, the court has also recognized
that affidavits may be properly admitted as evidence “in certain limited situations in which
the weakness of this method of proof is deemed substantially outweighed by the necessity for
expeditious procedure.”109 The clerk may find it necessary to consider affidavits in making his or
her decision on restoration, particularly given that many wards may lack the resources to pay for
medical experts to appear in person to testify. If the clerk elects to consider affidavits, the clerk
should keep in mind that the affidavit may lack credibility, that a party has the right to dispute
the truthfulness of the affidavit, and that an affidavit is not determinative or controlling of the
clerk’s decision. Despite the potential weaknesses or risks related to using affidavits, a clerk may
find them to be useful evidence, particularly where there are no objections disputing their truth
or authenticity and the credentials of the person making the affidavit are verifiable, relevant to
the restoration proceeding, and not called into question.
Whether evidence is submitted through affidavits, oral testimony, or other documents, the
clerk must ultimately determine whether the ward is competent. A ward is competent if he or
she has the capacity to manage his or her own affairs and to make or communicate important
decisions concerning his or her family and property.110 Evidence that may be helpful to the clerk
evidence, including rules on hearsay, apply. For a more in-depth discussion of hearsay and other rules
of evidence, see “Evidence,” N.C. Superior Court Judges’ Benchbook, http://benchbook.sog.unc.edu/
benchbook_section/5.
104. The incompetency and guardianship proceedings are two separate proceedings under G.S. Chap-ter
35A. Pursuant to G.S. 35A-1223, affidavits are expressly permitted as a form of evidence regarding the
appointment of the original guardian. However, no such similar exception exists in the statutes under
G.S. Chapter 35A related to an incompetency or restoration proceeding. See G.S. 35A-1223 (providing
that, with regard to the appointment of a guardian “[t]he 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”); see also generally G.S. Ch. 35A, Article 1 and Article 3.
105. See In re Custody of Griffin, 6 N.C. App. 375, 378 (1969).
106. See id.
107. See id.
108. See id.
109. See id.
110. “Incompetent adult” is defined under G.S. 35A-1101(7) as an adult or emancipated minor who
lacks sufficient capacity to manage the adult’s own affairs or to make or communicate important deci-sions
concerning the adult’s person, family, or property, whether the lack of capacity is due to mental
illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, disease, injury, or similar cause or
condition.
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in rendering a decision, particularly in those cases where the ward suffers from mental health
issues or substance abuse, includes but is not limited to whether:
•• the ward has a treatment/therapy plan in place;
•• the ward has adhered to a treatment/therapy plan over an extended number of months;
•• the ward acknowledges and understands the condition or cause that led to the order
adjudicating the ward to be incompetent;
•• the ward acknowledges the risk of relapse and has an emergency plan in place in the event
of a relapse along with a support network of people to contact in the event of relapse;
•• the ward is able to manage his or her daily affairs without assistance from his or her
guardian, such as making decisions about where to live, paying rent, maintaining
employment, providing for food, and living safely without being a threat to himself or
herself or others;
•• the guardian and/or the guardian ad litem support the motion for restoration;
•• the clerk finds any other information persuasive in making the decision to restore
competency.
If the burden of proof required for the clerk to enter an order granting restoration is not met,
the clerk may hear evidence at the hearing that indicates that a limited guardianship may be
appropriate if there is a change in the ward’s capacity.111 A limited guardianship is one where the
guardian’s authority is limited by the court and the ward obtains or retains certain legal rights
and the ability to make decisions in certain aspects of his or her life.112 The clerk may enter an
order denying restoration but modifying the guardianship to allow the ward, for example, to
manage small amounts of money or decide where he or she wants to live, go to church, work,
or spend time. Limited guardianship can be used as a stepping stone to restoration when a full
restoration may not be appropriate.
9. What rights are restored when the motion for restoration is granted by the clerk?
Once a ward’s competency has been restored, he or she may exercise all rights as if he or she had
never been adjudicated incompetent, with one exception.113 The rights restored upon entry of
the clerk’s order include, but are not limited to, the following:
•• executing advance directives and powers of attorney;
•• controlling and selling real and personal property;
•• giving any consent or approval that may be necessary to enable the former ward to receive
medical, legal, psychological, or other professional care, counseling, treatment, or service;
•• determining where he or she will live; and
•• otherwise managing his or her financial affairs and taking care of himself or herself.114
111. See G.S. 35A-1207(a) and (b); 35A-1212(a).
112. See Saxon, supra note 7, at 12.
113. See G.S. 35A-1130(d). The right to carry a firearm is not automatically restored upon entry of the
clerk’s order. The individual (former ward) is prohibited from purchasing a firearm through the National
Instant Criminal Background Check System (NICS) until the individual obtains a separate order from a
district court judge to remove the individual’s disability designation under NICS. See G.S. 122C-54.1; 18
U.S.C. § 922(g).
114. See G.S. 35A-1130(d).
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© 2015 School of Government. The University of North Carolina at Chapel Hill
In addition, effective October 1, 2015, the clerk is required to send a certified copy of the order
of restoration to the N.C. Division of Motor Vehicles (DMV).115 The DMV must restore the
driver’s license of the ward if it determines that the person is otherwise eligible for a driver’s
license under G.S. 20-7 and other applicable statutes.116
At the time the order of restoration is entered by the clerk, the guardian no longer has author-ity
over the ward or his or her financial affairs.117 However, the guardian does have continuing
duties to the court. The general guardian and the guardian of the estate must file, and the clerk
must enter, an order approving a final accounting before the guardian is discharged from his or
her duties.118
In preparing for a restoration hearing, the guardian may want to consider assisting the ward
in drafting advance directives, such as a durable power of attorney or health care power of attor-ney.
The ward could then execute them after the restoration order is entered and possibly avoid
a future guardianship proceeding in the event the ward relapsed or encountered some other
issue that results in a lack of competency. A durable power of attorney and health care power of
attorney may serve to replace the need for any future guardianship through the courts.
10. What is the applicable appeal period when the clerk denies the petitioner’s
request for restoration? What is the standard of review on appeal?
In the event the clerk determines that the petitioner failed to show by a preponderance of the
evidence that the ward is competent, the clerk will then enter an order denying the restoration
of the ward to competency.119 The ward or the ward’s attorney may appeal from the clerk’s order
to the superior court for a trial de novo.120 At a trial de novo, the evidence regarding the ward’s
competency and suitability for restoration will be presented and heard again by the superior
court judge.121
The time period for appeal is the same as for special proceedings generally, which is ten days
from the entry of the order denying the restoration motion.122 The order is entered, and thus
the ten days starts tolling, when it is reduced to writing, signed by the clerk, and filed with the
clerk’s office.123 The clerk is not required by statute to serve the order on the parties, and there-fore
the parties may not receive notice of the entry of the order and thus the commencement of
the ten-day tolling period.124 Notice of appeal must be in writing and is filed with the clerk.125
115 See S.L. 2015-165, amending G.S. Ch. 20, Art. 2 to add a new section, G.S. 20-17.1A.
116 Id.
117. See id.
118. See G.S. 35A-1130(e) and G.S. Ch. 35A, Subch. II.
119. See G.S. 35A-1130(f).
120. Id.
121. See Caswell Cty. v. Hanks, 120 N.C. App. 489, 491 (1995) (“A court empowered to hear a case de
novo is vested with full power to determine the issues and rights of all parties involved, and to try the
case as if the suit had been filed originally in that court.”).
122. See G.S. 1-301.2(e).
123. See G.S. 1A-1, Rule 58.
124. See G.S. 35A-1130(d); G.S. 1-301.2(f).
125. See G.S. 1-301.2(e).
©2015 School of Government. The University of North Carolina at Chapel Hill. This document may not be copied or posted online, nor transmitted, in printed or electronic form, without the written permission of the School of Government, except as allowed by fair use under United States copyright law. For questions about use of the document and permission for copying, contact the School of Government at sales@sog.unc.edu or call 919.966.4119.To browse a complete catalog of School of Government publications, please visit the School’s website at www.sog.unc.edu or contact the Bookstore, School of Government, Campus Box 3330, Knapp-Sanders Building, UNC-Chapel Hill, Chapel Hill, NC 27599-3330; email sales@sog.unc.edu; telephone 919.966.4119; or fax 919.962.2709.
Restoration to Competency under G.S. 35A-1130: Common Issues and Questions 21
The notice of appeal should be served by the appealing party on the guardian, the ward, and any other parties to the incompetency and restoration proceeding in accordance with the provisions of Rule 5 of the N.C. Rules of Civil Procedure.126 The order of the clerk denying the restora­tion motion remains in effect until it is modified or replaced by an order of the superior court judge.127 As a result, the guardianship remains in place pending the appeal.
126. See G.S. 35A-1130(b) (stating that service of the original motion for restoration shall be on the guardian, the ward, and any other parties to the incompetency proceeding). See also G.S. 1A-1, Rule 5. Because G.S. 35A-1130 does not specifically state that Rule 4 service is required for a notice of appeal, it is likely that only Rule 5 service is required.
127. See G.S. 1-301.2(e).