Short Answer

In North Carolina, an adult guardianship case is filed as a special proceeding before the Clerk of Superior Court to determine if your spouse is legally incompetent and to appoint a guardian. Because a valid health care power of attorney already authorizes medical decisions, the court often limits any new guardianship to finances (a guardian of the estate) or narrowly tailors authority. The respondent is entitled to counsel, a guardian ad litem, and a hearing; emergency or interim relief is available if immediate action is needed. A guardian of the estate must post bond, file inventories and annual accounts, and can then manage assets like retirement accounts with court oversight.

Understanding the Problem

You want to know whether and how to move forward with a North Carolina adult guardianship so you can manage your unconscious spouse’s finances. The petition is already pending before the Clerk of Superior Court, a guardian ad litem has been appointed, and your spouse has a medical power of attorney but no financial power of attorney. You cannot access a retirement account or handle financial affairs without legal authority, and you are weighing whether to continue or dismiss.

Apply the Law

North Carolina law requires a formal adjudication that an adult lacks capacity to manage personal and/or financial affairs before a guardian is appointed. The proceeding is filed in the county Clerk of Superior Court. The respondent is personally served, receives a written notice of rights, and is entitled to counsel and a guardian ad litem. The court may order a multidisciplinary evaluation. At a hearing, the Clerk decides, by a heightened standard of proof, whether to appoint a limited or full guardian (of the person, the estate, or both), favoring the least restrictive option and considering existing documents like a health care power of attorney.

Key Requirements

• Incompetency finding: Evidence shows your spouse cannot manage necessary personal or financial decisions.
• Proper filing and notice: File the guardianship petition (AOC-SP-200 series) in the correct county; complete personal service on your spouse and give notice to required next of kin.
• Rights and hearing: The respondent has a guardian ad litem and counsel; the Clerk holds a hearing and may order an evaluation.
• Least restrictive order: The court tailors authority; with a health care power of attorney, a guardian of the person may be unnecessary or limited.
• Financial safeguards: A guardian of the estate posts bond, files an inventory, manages funds prudently, and files annual accountings.

What the Statutes Say

• N.C. Gen. Stat. § 35A-1101 (Guardianship definitions and policy) – Key terms and guiding principles.
• N.C. Gen. Stat. § 35A-1106 (Petition for adjudication and guardianship) – Starts the case and outlines petition contents.
• N.C. Gen. Stat. § 35A-1112 (Hearing on incompetency) – Hearing procedures, rights, and decision standard.

Analysis

Apply the Rule to the Facts: Your spouse is unconscious and on a ventilator, so the record will likely show an inability to manage finances, meeting the threshold for an incompetency determination. Because a health care power of attorney exists, the court will often limit relief to a guardian of the estate rather than a guardian of the person. Without a financial power of attorney, dismissal would leave you without lawful access to the retirement account or other assets. Continuing the petition, and if needed seeking interim authority, aligns with the least-restrictive, finance-focused approach.

Process & Timing

1. Who files: The spouse or other interested person. Where: Clerk of Superior Court in the county where the respondent resides or is present. What: Petition for Adjudication of Incompetence and Application for Appointment of Guardian (AOC-SP-200 series) and Special Proceedings Summons (AOC-SP-100). When: File promptly; the hearing is scheduled after personal service and any ordered evaluation.
2. The Clerk appoints a guardian ad litem and ensures the respondent has counsel; the court may order a multidisciplinary evaluation. After service is complete and any evaluation is submitted, the Clerk holds the hearing. Timing varies by county and case complexity.
3. If appointed as guardian of the estate or general guardian, you post bond, receive Letters of Guardianship, and then file an inventory within a standard window. You can use the Letters to work with financial institutions, including retirement plan administrators. Annual accountings follow.

Exceptions & Pitfalls

• If a valid health care power of attorney is working, consider limiting guardianship to finances; overbroad orders are avoidable.
• Do not dismiss the petition until you have another lawful way to access finances; without a financial POA or guardianship, institutions usually cannot release funds.
• Expect bond and accounting duties for a guardian of the estate; using restricted accounts may reduce bond.
• Incomplete or late service delays the hearing; confirm the sheriff or process server returns proof of service.
• Emergency or interim guardianship is available when immediate financial or personal harm is likely; ask the Clerk if urgent action is needed.

Talk to a Guardianship Attorney

If you’re dealing with a spouse on life support and need authority to manage finances, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

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.