Short Answer

In North Carolina, a guardian can be appointed for an adult only if the Clerk of Superior Court first finds the person legally “incompetent.” Poor or risky money choices alone are not enough. The court must see clear, cogent, and convincing evidence that the person cannot manage their affairs or make/communicate important decisions, and that less restrictive alternatives will not work.

Understanding the Problem

In North Carolina, can you ask the Clerk of Superior Court to appoint you and your spouse as guardian of your in‑law’s estate when your in‑law owns assets but refuses to manage them? The issue is whether the court may impose guardianship over finances when the adult is making poor decisions but remains mentally competent.

Apply the Law

Under North Carolina law, adult guardianship is a last resort. The Clerk of Superior Court can appoint a guardian of the estate only after adjudicating the person “incompetent,” meaning they lack sufficient capacity to manage their affairs or to make or communicate important decisions. Recent updates require the court to consider less restrictive alternatives first (for example, a power of attorney, representative payee, or supported decision-making). The adjudication uses a high evidentiary standard, and the Clerk may tailor a limited guardianship if only certain rights need to be transferred.

Key Requirements

• Legal incompetence: Proof, by clear, cogent, and convincing evidence, that the adult cannot manage affairs or make/communicate important decisions; poor judgment alone does not meet this standard.
• Least-restrictive approach: The court must consider less restrictive alternatives and use guardianship only if those options are insufficient.
• Forum and venue: Proceeding is filed with the Clerk of Superior Court in the adult’s county of residence/domicile.
• Process safeguards: Personal service on the respondent, appointment of a guardian ad litem, and a prompt hearing; limited guardianship if appropriate.
• Emergency option: An interim guardian may be appointed before the final hearing if there is reasonable cause to believe incompetence and an imminent or foreseeable risk of harm to the person or estate.
• Post‑appointment duties (estate): Bonding, qualification, letters issued, inventory within three months, and periodic accountings.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1101 (Definitions; incompetence standard) – Defines incompetence for adults and frames capacity analysis.
• North Carolina Gen. Stat. § 35A-1112 (Hearing; burden of proof) – Requires clear, cogent, and convincing evidence to adjudicate incompetence.
• North Carolina Gen. Stat. § 35A-1114 (Interim guardian) – Allows temporary protection if immediate risk exists and reasonable cause to believe incompetence.
• North Carolina Gen. Stat. § 35A-1201 (Purpose) – Emphasizes guardianship as a last resort and encourages least‑restrictive measures.

Analysis

Apply the Rule to the Facts: Wanting guardianship because a relative “won’t manage” assets is not enough. Unless your in‑law is proven legally incompetent—and less restrictive tools won’t meet their needs—the Clerk cannot appoint a guardian merely for poor financial choices. If there is immediate risk to the estate (for example, active exploitation or funds disappearing), you could seek an interim guardian, but even that requires reasonable cause to believe incompetence plus a foreseeable risk of harm.

Process & Timing

1. Who files: Any interested person. Where: Clerk of Superior Court in the respondent’s county. What: AOC‑SP‑200 (Petition for Adjudication of Incompetence and Application for Appointment of Guardian) and AOC‑SP‑201 (Notice of Hearing). If emergency relief is needed, include a verified interim‑guardian request. When: The Clerk sets a hearing date promptly after filing; personal service on the respondent by the sheriff must occur before the hearing.
2. The Clerk appoints a guardian ad litem and may order a multidisciplinary evaluation if capacity is unclear. Contested hearings commonly occur within a few weeks; an interim‑guardian motion is heard immediately if urgent.
3. Final step: If the respondent is adjudicated incompetent, the Clerk decides the type/scope of guardianship and who serves, enters orders (including AOC‑E‑406), and the guardian qualifies (bond), receives letters (AOC‑E‑206/related forms), and files an inventory within three months.

Exceptions & Pitfalls

• If the adult is competent and willing to use alternatives (e.g., durable power of attorney, representative payee, supported decision‑making), guardianship will likely be denied.
• Failing to allege less restrictive alternatives and why they won’t work can sink a petition.
• Service defects (no personal service on the respondent) delay or derail the hearing.
• An interim guardian requires both reasonable cause to believe incompetence and imminent/foreseeable risk—financial risk alone without capacity concerns is usually insufficient.
• Guardians of the estate must post bond and file timely inventories/accountings; missing these triggers court action.

Talk to a Guardianship Attorney

If you’re dealing with a situation where a loved one resists managing assets and you’re considering guardianship, our firm can help you assess capacity, alternatives, and timing. Call us today.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.