Short Answer

In North Carolina, you can ask the Clerk of Superior Court to pause the emergency (interim) guardianship and reschedule the hearing if you were not properly served. File a prompt written motion to continue for lack of service and, if an interim order has been entered, a motion to dissolve or narrow it. Bring the power of attorney as a less restrictive alternative and be ready to appear and object to proceeding without proper notice.

Understanding the Problem

You are in North Carolina. You want to know if you can challenge an emergency guardianship hearing that was set without formally serving you. You are your parent’s current agent under a recent power of attorney, and a prior agent and your sibling filed the emergency petition. A hearing is coming up soon.

Apply the Law

North Carolina guardianship cases start as special proceedings before the Clerk of Superior Court. Before the court can adjudicate incompetence, the respondent (your parent) must be personally served and given notice in advance. In true emergencies, the clerk may appoint an interim guardian without full notice, but that order is temporary and subject to prompt review. The respondent has rights at the hearing, including counsel and the chance to present evidence. The court should consider less restrictive options, such as a valid power of attorney, before imposing guardianship.

Key Requirements

• Proper service and notice: The respondent must be personally served with notice of the incompetency hearing in advance; others entitled to notice should be notified if known.
• Emergency (interim) orders are temporary: Interim guardians can be appointed quickly to prevent immediate harm, but the order is short-lived and can be modified or dissolved after notice and a hearing.
• Respondent’s hearing rights: The respondent has rights to attend, to counsel, to present and challenge evidence, and to a fair hearing before a permanent guardian is appointed.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1107 (Notice and service) – Requires service of notice of the incompetency hearing.
• North Carolina Gen. Stat. § 35A-1108 (Respondent’s rights) – Lists the respondent’s rights at and before the hearing.
• North Carolina Gen. Stat. § 35A-1126 (Interim guardian) – Allows temporary appointment when immediate protection is needed, subject to prompt review.

Analysis

Apply the Rule to the Facts: Because you were not formally served and only learned of the hearing online, you can ask the Clerk of Superior Court to continue the hearing until proper notice is given. If an interim guardian has been appointed or will be sought at the hearing, you can also move to dissolve or narrow any interim order. Your recent power of attorney is relevant because it is a less restrictive alternative that may address your parent’s needs without a guardian.

Process & Timing

1. Who files: You (as an interested person/agent) or your parent’s attorney. Where: Clerk of Superior Court, Special Proceedings (guardianship) file in the same county where the petition was filed. What: File a written Motion to Continue for lack of proper service and, if applicable, a Motion to Dissolve or Modify Interim Guardianship; include a brief affidavit and attach the power of attorney. When: Immediately upon learning of the hearing—ask for an expedited ruling before the scheduled date.
2. Serve your motions on the petitioner and any counsel of record and deliver courtesy copies to the guardianship clerk. Ask the clerk to set a prompt hearing on your motions; timing can vary by county.
3. Attend the hearing. Be prepared to show the lack of proper service, explain why an interim guardianship is unnecessary or should be limited, and present the power of attorney and specific safeguards you can implement. The clerk will enter a written order on the motions and may reschedule the main hearing.

Exceptions & Pitfalls

• True emergencies: The clerk may enter an interim guardianship without full notice to prevent immediate harm. You can still request a prompt review to dissolve or narrow it.
• Notice focuses on the respondent: The law requires personal service on your parent; failure to notify you as agent may not automatically void the proceeding. Act quickly to be heard.
• Less restrictive alternatives: Bring proof that the power of attorney is valid and functional; explain concrete steps you will take to protect finances/health to avoid or limit guardianship.
• Service and proof traps: Use proper service for your motions and file a certificate of service; incomplete service can delay relief.

Talk to a Guardianship Attorney

If you’re facing an emergency guardianship hearing without proper notice, our firm can help you act fast, protect your parent’s rights, and present alternatives. 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.