State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_35A > GS_35A-1130

Article 3.

Restoration toCompetency.

§ 35A‑1130.  Proceedingsbefore clerk.

(a)        The guardian, ward,or any other interested person may petition for restoration of the ward tocompetency by filing a motion in the cause of the incompetency proceeding withthe clerk who is exercising jurisdiction therein. The motion shall be verifiedand shall set forth facts tending to show that the ward is competent.

(b)        Upon receipt of themotion, the clerk shall set a date, time, and place for a hearing, which shallbe not less than 10 days or more than 30 days from service of the motion andnotice of hearing on the ward and the guardian, or on the one of them who isnot the petitioner, unless the clerk for good cause directs otherwise. Thepetitioner shall cause notice and a copy of the motion to be served on theguardian and ward (but not on one who is the petitioner) and any other partiesto the incompetency proceeding. Service shall be in accordance with provisionsof G.S. 1A‑1, Rule 4, Rules of Civil Procedure.

(c)        At the hearing onthe motion, the ward shall be entitled to be represented by counsel or guardianad litem, and a guardian ad litem shall be appointed in accordance with rulesadopted by the Office of Indigent Defense Services if the ward is indigent andnot 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, uponrequest by him, his counsel, or his guardian ad litem to trial by jury. Failureto request a trial by jury shall constitute a waiver of the right. The clerkmay nevertheless require trial by jury in accordance with G.S. 1A‑1, Rule39(b), Rules of Civil Procedure, by entering an order for trial by jury on hisown motion. Provided, if there is a jury in a proceeding for restoration tocompetency, it shall be a jury of six persons selected in accordance with theprovisions of Chapter 9 of the General Statutes.

(d)        If the clerk orjury finds by a preponderance of the evidence that the ward is competent, theclerk shall enter an order adjudicating that the ward is restored tocompetency. Upon such adjudication, the ward is authorized to manage hisaffairs, make contracts, control and sell his property, both real and personal,and exercise all rights as if he had never been adjudicated incompetent.

(e)        The filing andapproval of final accounts from the guardian and the discharge of the guardianshall be as provided in Subchapter II of this Chapter.

(f)         If the clerk orjury fails to find that the ward should be restored to competency, the clerkshall enter an order denying the petition. The ward may appeal from the clerk'sorder to the superior court for trial de novo. (1987, c. 550, s. 1; 2000‑144, s. 34.)