Abatement_appeal--denial of incompetence adjudication_death of respondent
A petition to declare a respondent incompetent does not survive the death of the
respondent under N.C.G.S. § 28A-18-1. An appeal from an order dismissing a petition for an
adjudication of incompetence abated and was dismissed.
Wade Hall for petitioner-appellant.
Donny J. Laws for respondent-appellee.
EAGLES, Chief Judge.
This is an appeal from an order dismissing a N.C. Gen. Stat.
§ 35A-1105 petition for adjudication of incompetence. Petitioner
sought to have her brother, the respondent, declared incompetent.
At the time of the hearing, the respondent, William Brooks
Higgins, was a seventy-six year old man who resided by himself in
Yancey County. Petitioner is the respondent's sister, Linda
Waldrep. Petitioner visited respondent at his home in late January
or early February 2000 and decided that her brother did not need to
be living by himself. Petitioner opined that respondent appeared
dirty, undernourished and in poor health and that the house was “a
wreck.” Petitioner took respondent to her home and attempted to
care for him there, but because she worked full time, was unable toprovide adequate attention to respondent's care. Petitioner had
respondent, a veteran, admitted to the Asheville VA Medical Center
on 10 February 2000. The staff of the medical center did not
address competency on the day they admitted respondent, but did
note that his mental status exam revealed orientation “only to
person” and severe deficits in short term memory.
At some point in February 2000, while respondent was in the
hospital, petitioner and Estel Higgins, the respondent's brother,
each obtained a power of attorney for respondent. This led to a
dispute over who was authorized to manage respondent's care and
financial affairs. On 3 March 2000, petitioner filed a petition to
have respondent declared incompetent, in Buncombe County. On 17
March 2000, Estel Higgins sought to intervene and moved to have the
venue changed to Yancey County. On 29 March 2000, the matter was
transferred to Yancey County for a hearing before the Yancey County
Clerk of Superior Court.
In July 2000, the clerk conducted the hearing and dismissed
the petition because he did not find by clear, cogent and
convincing evidence that respondent was incompetent. Petitioner
then appealed to have the matter reheard in Superior Court.
Respondent filed a motion to dismiss and petitioner filed a motion
for summary judgment before the Superior Court, both were denied.
The matter was then heard by the Superior Court in a bench trial.
On 13 November 2000, the Superior Court concluded that “Respondent
is not incompetent and declines to find that the Respondent is
incompetent” and dismissed the petition. Petitioner appeals thisdecision. During the pendency of this appeal, respondent died on
26 December 2002.
Petitioner argues on appeal that: (1) the trial court erred in
allowing evidence to be presented by individuals other than the
petitioner and respondent, (2) the trial court erred in denying
her motion for summary judgment, and (3) the trial court erred in
dismissing the petition for adjudication of incompetence. However,
the dispositive issue is whether, when the trial court dismisses a
petition for adjudication of incompetence, the action abates upon
the death of the respondent during the pendency of the petitioner's
appeal. We conclude that it does.
We note that the respondent died during the pendency of this
appeal. “No action abates by reason of the death of a party while
an appeal may be taken or is pending, if the cause of action
survives.” N.C.R. App. P. 38(a). Consequently, we must determine
whether the cause of action survived respondent's death. The
survival of causes of action is governed by N.C. Gen. Stat. § 28A-
18-1:
(a) Upon the death of any person, all
demands whatsoever, and rights to prosecute or
defend any action or special proceeding,
existing in favor of or against such person,
except as provided in subsection (b) hereof,
shall survive to and against the personal
representative or collector of his estate.
(b) The following rights of action in
favor of a decedent do not survive:
(1) Causes of action for libel and
for slander, except slander of
title;
(2) Causes of action for false
imprisonment;
(3) Causes of action where the
relief sought could not be
enjoyed, or granting it would
be nugatory after death.
N.C. Gen. Stat. § 28A-18-1 (2001). Here, the first two exceptions
clearly do not apply. However, the third exception does apply.
The third exception provides that a cause of action does not
survive a party's death where the relief sought could not be
enjoyed or granting it would be nugatory after death. (Nugatory
meaning “[o]f no force or effect; useless; invalid.” Black's Law
Dictionary 1093 (7th ed. 1999)). In deciding whether the relief
could not be enjoyed or granting it would be nugatory, this court
has looked at the purpose or the desired end result of a
proceeding. In Elmore v. Elmore, 67 N.C. App. 661, 313 S.E.2d 904
(1984), this Court found that a divorce action did not survive the
death of a party because the main purpose of a divorce, the
dissolving of the marital state, was accomplished by the death of
a party. Therefore, we examine the main purpose of incompetency
proceedings for adults to determine whether the death of the
respondent obviates that purpose.
Chapter 35A of the North Carolina General Statutes governs
incompetency proceedings. An incompetent adult is “an adult or
emancipated minor who lacks sufficient capacity to manage the
adult's own affairs or to make or communicate important decisions
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, senility, disease, injury, or
similar cause or condition.” N.C. Gen. Stat. § 35A-1101(7) (2001).
When an adult is adjudicated incompetent, a guardian is appointed.
N.C. Gen. Stat. § 35A-1120 (2001). The guardian is to help the
incompetent individual exercise their rights, including themanagement of their property and personal affairs, and to replace
the individual's authority to make decisions when the individual
does not have adequate capacity to make those decisions. N.C. Gen.
Stat. § 35A-1201(a) (2001). As the guardian helps the individual
exercise their rights and makes decisions that the individual would
otherwise make, a guardian is essential only while the individual
is still alive. After the individual dies, there is no longer a
need for a guardian to help the individual. Thus, the result that
the petition seeks to accomplish is no longer necessary after a
respondent dies.
This is a cause of action where granting the relief sought
would be nugatory after the death of the respondent. We do not
address the issue of whether there is an appeal of right from the
denial of a petition to declare a person incompetent. See N.C.
Gen. Stat. § 35A-1115. We conclude that a petition to declare a
respondent incompetent does not survive the death of the respondent
under N.C. Gen. Stat. § 28A-18-1. Thus, the appeal abated upon the
26 December 2002 death of the respondent. The appeal has become
moot and is accordingly dismissed.
Appeal dismissed.
Judges McCULLOUGH and STEELMAN concur.
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