What process do I follow to restore my rights as my adult child’s guardian? – North Carolina

Short Answer

In North Carolina, you have two possible paths. If there was no lawful incompetency adjudication, ask the Clerk of Superior Court to void and terminate the guardianship and revoke the facility’s letters. If there was a valid adjudication and your child’s capacity has improved, file a motion in the guardianship case to restore your child’s rights (restoration of competency). If a guardian is still needed, you may also seek to be appointed in place of the facility and request a limited guardianship tailored to your child’s actual needs.

Understanding the Problem

You want to know the North Carolina process to either regain your role as guardian or fully restore your adult child’s rights. You are the parent, a facility currently serves as guardian, and public records show no incompetency petition was ever filed. You have already moved to terminate the guardianship and want to know whether you must also file a restoration of capacity motion.

Apply the Law

North Carolina guardianship is a two-step process: (1) an adult is adjudicated incompetent after proper notice and hearing; then (2) the Clerk appoints a guardian only to the extent necessary. The Clerk of Superior Court (Special Proceedings division) is the main forum. Initial adjudications require strict personal service on the respondent and high-proof standards; guardianship cannot be imposed without following this procedure. If capacity later returns, the ward or any interested person can ask the Clerk to restore rights and terminate the guardianship. If a guardian is still needed, the Clerk may modify or replace the guardian to best serve the ward.

Key Requirements

• Lawful adjudication first: A valid guardianship requires a filed petition, notice, and a hearing (or jury if the respondent demands). No shortcuts.
• Restoration option: After a valid adjudication, anyone interested may seek restoration if the adult regains capacity; the Clerk holds a hearing and may order updated evaluations.
• Termination or modification: If rights are restored, the Clerk terminates the guardianship and revokes letters. If some support is still needed, the Clerk can narrow the guardianship or appoint a different guardian who is suitable.
• Challenging a defective order: If no incompetency petition or hearing occurred, move to set aside the guardianship as void and revoke the guardian’s letters.
• Service and notice: Serve the existing guardian and other parties; the Clerk may appoint a guardian ad litem to ensure the ward’s interests are protected.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1102 (Exclusive incompetency procedure) – Guardianship begins with a formal adjudication process.
• North Carolina Gen. Stat. § 35A-1105 (Petition to adjudicate incompetence) – Details who may file and how a case starts.
• North Carolina Gen. Stat. § 35A-1109 (Service on respondent) – Requires personal service on the respondent.
• North Carolina Gen. Stat. § 35A-1130 (Restoration to competency) – Allows restoration and termination if capacity returns.

Analysis

Apply the Rule to the Facts: Because public records show no incompetency petition was filed, the first question is whether your child was ever lawfully adjudicated incompetent. If not, you can ask the Clerk to set aside the guardianship as void for lack of the required petition, service, and adjudication, and to revoke the facility’s letters. If there was a valid adjudication and your child’s capacity has improved, file a motion for restoration to competency. If some support is still needed, ask the Clerk to appoint you as guardian and limit the guardianship to only what is necessary.

Process & Timing

1. Who files: You (as an interested party). Where: Clerk of Superior Court, in the county where the guardianship case is filed (Special Proceedings). What: A verified motion in the existing guardianship file to (a) set aside and terminate as void if no adjudication occurred; and, in the alternative, (b) restore rights; and/or (c) remove/replace the current guardian and narrow the guardianship. Attach recent medical or capacity evaluations; ask for a multidisciplinary evaluation if helpful. When: File as soon as possible; the Clerk will set a hearing after service.
2. Serve the facility guardian and any required next of kin. The Clerk may appoint a guardian ad litem for your child, and may order updated evaluations. Hearings are typically scheduled within weeks, but timing varies by county.
3. At the hearing, the Clerk can: (a) void and terminate an improperly imposed guardianship; (b) restore rights and revoke letters if capacity has returned; or (c) modify the plan and issue new letters appointing you (or another suitable person) as limited or general guardian, as needed.

Exceptions & Pitfalls

• If an adjudication exists: If a valid adjudication and proper service were completed, use restoration (not a voidness challenge) to end or narrow the guardianship.
• Evidence matters: Bring current medical opinions and functional assessments. Ask the Clerk to order a multidisciplinary evaluation if capacity is disputed.
• Service and notice: You must properly serve the current guardian and other required parties. Missing service can delay or derail your motion.
• Right to participate: The ward has rights, including counsel and a guardian ad litem. Expect the Clerk to tailor any guardianship to the least restrictive alternative.
• Replacement vs. termination: If full restoration is not supported, request appointment as guardian and a limited guardianship focused only on what your child cannot manage.

Talk to a Guardianship Attorney

If you’re dealing with a contested or unclear guardianship and want to restore rights or replace a facility guardian, 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.