North Carolina General Statutes 35A-1112. Hearing on petition; adjudication order
Terms Used In North Carolina General Statutes 35A-1112
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- following: when used by way of reference to any section of a statute, shall be construed to mean the section next preceding or next following that in which such reference is made; unless when some other section is expressly designated in such reference. See North Carolina General Statutes 12-3
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- state: when applied to the different parts of the United States, shall be construed to extend to and include the District of Columbia and the several territories, so called; and the words "United States" shall be construed to include the said district and territories and all dependencies. See North Carolina General Statutes 12-3
- Subpoena: A command to a witness to appear and give testimony.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(a) 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.
(b) 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 N.C. Gen. Stat. § 35A-1114(d) and (e) if the clerk determines such an appointment to be in the best interests of the respondent.
(c) 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.
(d) 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.
(e) 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 N.C. Gen. Stat. § 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.
(f) 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.
(g) Except as provided in N.C. Gen. Stat. § 35A-1114(f), a proceeding filed under this Article may be voluntarily dismissed as provided in N.C. Gen. Stat. § 1A-1, Rule 41, Rules of Civil Procedure. (1987, c. 550, s. 1; 2017-158, s. 7; 2018-33, s. 45(b).)