Do I need to file a motion to restore capacity when no incompetency finding was ever made? – North Carolina

Short Answer

Under North Carolina law, a restoration of capacity motion is used only when a court has already adjudicated the adult incompetent. If no adjudication of incompetence was ever made, there is nothing to “restore.” The proper course is to move to terminate or vacate the guardianship in the original file and require compliance with the statutory incompetency process before any guardian may serve.

Understanding the Problem

In North Carolina, can a parent of an adult under full guardianship skip a restoration motion when public records show no incompetency petition or adjudication was ever filed? The parent wants either to resume serving as guardian or have the adult child’s rights fully restored.

Apply the Law

North Carolina requires an adjudication of incompetence before a guardian can be appointed for an adult. The Clerk of Superior Court conducts the hearing and, if proven by the required standard, enters an order adjudicating incompetence; only then are letters of guardianship issued. A separate “restoration to competency” process exists, but it applies only when a person was previously adjudicated incompetent. If no adjudication occurred, the right remedy is a motion to terminate or to set aside any guardianship orders and letters entered without the required adjudication. Emergency or interim guardians may be appointed briefly before an adjudication, but those orders are tightly limited and must be followed by a prompt hearing.

Key Requirements

• Adjudication first: An adult guardianship requires a petition, notice, a hearing before the Clerk of Superior Court, and an order adjudicating incompetence before any guardian is appointed.
• Separate appointment: If incompetence is found, the clerk then determines the type of guardian and issues letters; the two steps are distinct.
• Restoration limited to prior adjudications: A restoration motion is the tool for those already adjudicated incompetent who seek to regain rights.
• Termination/modification: Guardianships can be modified or terminated when legal prerequisites were not met or the need no longer exists.
• Emergency/interim is temporary: Any interim guardianship must be narrowly tailored and promptly followed by a hearing; it does not replace the required adjudication.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1102 (Exclusive procedure) – Guardianship of adults requires the Chapter 35A incompetency process.
• North Carolina Gen. Stat. § 35A-1112 (Adjudication hearing) – Sets the hearing, standard of proof, and order adjudicating incompetence.
• North Carolina Gen. Stat. § 35A-1130 (Restoration to competency) – Procedure for restoring rights after an adjudication of incompetence.
• North Carolina Gen. Stat. § 35A-1295 (Modification/termination) – Allows modification or termination of a guardianship by motion in the cause.

Analysis

Apply the Rule to the Facts: Because public records show no petition or adjudication of incompetence, a restoration motion is not required and does not fit the situation. The better path is the pending motion to terminate the guardianship, and, if needed, a request to set aside any appointment or letters issued without a valid adjudication. If a short-term interim order was ever entered, the clerk should verify whether the required prompt hearing occurred; if not, that supports termination. If the adult now needs no guardian, the clerk can end the guardianship and revoke letters.

Process & Timing

1. Who files: The ward, the parent, the current guardian, or any interested person. Where: Clerk of Superior Court (Estates/Guardianship), in the county where the guardianship file exists. What: A verified motion in the cause to terminate or modify the guardianship under § 35A-1295 and, if appropriate, a motion to set aside any appointment entered without an adjudication (relief from a void order). When: File as soon as you confirm there was no adjudication; the clerk will calendar a hearing.
2. Serve the motion on the guardian, the ward, and required interested parties. The clerk will hold a hearing; timeframes vary by county, but these matters are typically set within weeks.
3. After the hearing, the clerk may terminate the guardianship and revoke letters, modify to a limited guardianship if appropriate, or direct that a proper incompetency petition be filed and heard before any guardianship continues.

Exceptions & Pitfalls

• If a prior adjudication exists in another county or state, restoration may be the correct vehicle; confirm the full docket before filing.
• Do not confuse a court‑appointed guardian with a representative payee or health care agent; those roles do not require an adjudication.
• Service matters: follow required notice so the clerk can reach the merits at the first setting.
• If the adult still needs help, consider whether a limited guardianship or less restrictive alternative fits better than a full termination.

Talk to a Guardianship Attorney

If you’re dealing with a guardianship that was imposed without a proper incompetency adjudication, 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.