Caring for a family member can be challenging, but caring for an elderly parent comes with its own unique questions. In some cases, an elderly parent may no longer be able to care for themselves or manage their personal or financial affairs, even with assistance.
Below are commonly asked guardianship questions and responses based on my 10+ years helping clients with guardianship matters. In our Guide to Guardianship in NC of Elderly Family Members, you’ll find more in-depth information about guardianship — from when and how to seek guardianship to options for resolving guardianship disputes.
How do I file for guardianship?
To begin a guardianship proceeding in North Carolina, you will need to file a Petition for Adjudication of Incompetence and Application for Appointment of Guardian and pay the associated Court filing fee.
Where do I file for guardianship?
All guardianship proceedings are heard before the Clerk of Superior Court. You must file in the County in which the person needing a guardian resides or is an inpatient in a treatment facility.
When will the guardianship hearing be?
Within 5 days after filing the Petition for Adjudication of Incompetence and Application for Appointment of Guardian, the Clerk will issue a written notice of the date, time, and place for a hearing on the petition. The hearing date will be sometime between 10 and 30 days after service of the notice and petition on the person needing a guardian.
What evidence is presented at the guardianship hearing?
The person bringing the guardianship proceeding and the person in need of a guardian are both allowed to present evidence at the hearing, to subpoena witnesses, to examine and cross-examine witnesses, and to provide documents to the Court that relate to competence or incompetence. Frequently, the testimony of a treating physician is a critical piece of evidence at the guardianship hearing. Testimony from family, friends, neighbors, and other healthcare providers is also common.
What if I don’t like the outcome of the guardianship hearing?
You can appeal the Clerk’s order to the Superior Court for a new hearing, but you must do so within 10 days of the date the order is entered.
Who can be appointed guardian?
Any adult individual, a corporation, or a disinterested public agent (like the Department of Social Services) may be appointed by the Clerk to serve as guardian. If a parent makes a recommendation in his or her will for a particular person to be a guardian for an unmarried child who has been declared incompetent, that recommendation will be a strong guide for the Clerk in appointing a guardian, but the Clerk is not required to follow that recommendation if the Clerk finds that a different person is in the incompetent adult’s best interest.
Can I be appointed as guardian if I live outside the State of North Carolina?
Yes, a nonresident of the State of North Carolina may be appointed guardian, although there are a few extra requirements. First, a nonresident must indicate in writing a willingness to submit to the jurisdiction of the North Carolina courts in matters relating to the guardianship. Second, a nonresident must appoint someone within the State of North Carolina as their agent for purposes of accepting service of process with respect to the guardianship.
What reports does a guardian have to file?
A guardian of the estate or a general guardian must file with the Clerk an inventory or accounting within three months after being appointed as guardian as well as within 30 days after the expiration of one year from the date of being appointed as guardian, and annually thereafter.
Can a guardian be removed or replaced?
Yes, a guardian may resign by filing a motion with the Clerk, seeking acceptance of his or her resignation. Additionally, a guardian can be removed by the Clerk under certain circumstances, including engaging in mismanagement, waste, neglect, false representations, or misconduct. Upon the removal, death, or resignation of a guardian, the Clerk will appoint a new guardian in the same way the initial guardian was appointed, as discussed above.
How do I seek restoration of competence?
Sometimes incompetence is temporary, particularly where an incompetent person suffers from a medical condition. To seek restoration of competence, the guardian, ward or any other interested person may file a motion with the Clerk setting forth the facts showing that the ward is competent.
This article was originally published on January 11, 2017 and updated on July 31, 2020.