Short Answer

Yes—if the Clerk of Superior Court finds your father is incompetent and that a guardian is necessary, the clerk may appoint the person who will best serve his interests. A spouse or adult child can be chosen, but the clerk must also consider any existing power of attorney and whether a more limited arrangement would work. If a guardian is appointed, the court can limit or override a power of attorney when needed.

Understanding the Problem

You want to know if you or your spouse can be appointed as your father’s guardian in North Carolina even though an out-of-state daughter holds his health care power of attorney. The specific decision is whether the clerk can appoint a different person as guardian to manage personal, medical, and financial decisions amid family conflict.

Apply the Law

In North Carolina, adult guardianship is handled by the Clerk of Superior Court. The court must first determine that the adult is incompetent and that a guardianship is necessary and tailored to the person’s actual needs. The clerk appoints the guardian who will best serve the ward’s welfare and interests; relatives may serve if suitable. Existing powers of attorney are considered as less-restrictive alternatives, and if a guardian is appointed, the order can limit, suspend, or leave in place the agent’s authority depending on what protects the ward.

Key Requirements

• Incompetency finding: The court must find your father cannot manage essential personal, health, or financial affairs.
• Necessity and scope: The clerk must consider less-restrictive options (like powers of attorney) and order only the level of guardianship needed.
• Best interest and suitability: The clerk appoints the most suitable person—often a relative—considering conflicts, ability to serve, and the ward’s preferences and needs.
• Interaction with POAs: A financial agent remains accountable to a court‑appointed guardian, and the court may limit or revoke an agent’s authority if required for protection.
• Forum and oversight: The Clerk of Superior Court hears the case, may order mediation in contested matters, and oversees the guardian’s ongoing duties.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1101 (Key definitions) – Defines incompetence and the roles used in guardianship.
• North Carolina Gen. Stat. § 35A-1201 (Policy; least restrictive alternative) – Guardianship must be no broader than necessary and consider less-restrictive options.
• North Carolina Gen. Stat. § 32C-1-108 (Agent and court‑appointed fiduciary) – An agent under a financial power of attorney remains accountable to a later‑appointed guardian; the court can adjust authority.
• North Carolina Gen. Stat. § 32A-22 (Health care agent’s authority) – Describes a health care agent’s powers and how court involvement can affect those powers.

Analysis

Apply the Rule to the Facts: Your father has been found self-neglecting in North Carolina, which supports an incompetency finding if proven with evidence. Because a daughter holds an out-of-state health care power, the clerk must consider whether that power alone sufficiently protects him. If not, the clerk can appoint a guardian (limited, of the person, of the estate, or general) and may choose you or your spouse if you are suitable and free of disabling conflicts. The clerk can also tailor the order to limit or override the agent’s authority if necessary to protect your father.

Process & Timing

1. Who files: An interested person (e.g., you). Where: Clerk of Superior Court in the North Carolina county where your father resides or is present. What: File AOC-SP-200 (Petition for Adjudication of Incompetence and Application for Appointment of Guardian) and request the appropriate type(s) of guardianship. When: As soon as ongoing self-neglect or risk requires court protection.
2. The clerk issues process, ensures the respondent receives required notices, and typically appoints counsel or a guardian ad litem for the respondent. A hearing is set after service; timelines can vary by county. In contested cases, the clerk may order mediation to narrow disputes.
3. At the hearing, the clerk decides incompetency, whether guardianship is necessary, the least-restrictive scope, and who is suitable. If appointed, the court issues an order and letters of guardianship (often using AOC-SP-202). A guardian of the estate must qualify (including any bond) before acting.

Exceptions & Pitfalls

• If a valid power of attorney is effectively protecting your father, the clerk may deny a broad guardianship and order a narrower, limited arrangement instead.
• Conflicts of interest (family disputes, financial self‑dealing) can disqualify an applicant; the clerk may appoint a neutral or public guardian.
• Out‑of‑state health care powers are often recognized if valid where executed; bring a complete copy. The court can limit an agent’s authority if it harms the ward’s interests.
• Service or notice errors delay hearings; make sure all required relatives are identified and properly served.

Talk to a Guardianship Attorney

If you’re dealing with an urgent adult‑guardianship situation and family conflict over who should decide care and finances, our firm has experienced attorneys who can help you understand your options and timelines. Contact us today to get started.

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.