Short Answer

In North Carolina, you can petition the Clerk of Superior Court in the county where your aunt lives or is present to be appointed as her guardian, even if you live out of state. You must file the required forms, have your aunt personally served by the sheriff, and present clear, convincing proof of her incapacity and need for guardianship. If appointed, a nonresident guardian must designate a North Carolina resident process agent for service and, if handling money, post a bond before receiving Letters of Guardianship.

Understanding the Problem

You want to know whether you can ask a North Carolina court to appoint you as guardian for your aunt, and what steps are involved, even though you live out of state. In North Carolina, the Clerk of Superior Court decides these cases. Your aunt is in a North Carolina nursing facility and has severe dementia. You’re aiming for a general guardianship to manage both care and finances.

Apply the Law

North Carolina guardianship for an adult is a two‑step process before the Clerk of Superior Court: (1) adjudication of incompetence, and if granted, (2) appointment of a guardian (of the person, of the estate, or general). Any person may file the petition. The respondent (your aunt) must be personally served by the sheriff, and the court often appoints a guardian ad litem to investigate and report. The petitioner must present clear, cogent, and convincing evidence of incompetence and the need for guardianship. Venue is typically the county where your aunt is located. If you live out of state and are appointed, you must designate a North Carolina resident process agent for service. If you’ll control assets, you will also take an oath and post a bond before Letters of Guardianship issue.

Key Requirements

• File a verified petition: Use the state form and include facts showing incompetence, next‑of‑kin, and relief requested (e.g., general guardian).
• Personal service on respondent: The sheriff personally serves your aunt with the petition and hearing notice; the court typically appoints a guardian ad litem.
• Proof at hearing: Provide medical records and testimony to meet the “clear, cogent, and convincing” standard for incompetence.
• Appointment phase: The Clerk decides the least restrictive guardianship needed and who is best suited to serve, considering priorities and suitability.
• Nonresident requirements: If appointed while living out of state, you must designate a North Carolina resident process agent for service of filings.
• Bond and letters: If managing money (estate or general guardian), expect to post a bond, take an oath, and then receive Letters of Guardianship.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1105 (Who may file; petition) – Any person may file to start an incompetency proceeding.
• North Carolina Gen. Stat. § 35A-1109 (Notice; personal service) – Requires personal service on the respondent, typically by the sheriff.
• North Carolina Gen. Stat. § 35A-1112 (Hearing; burden of proof) – Sets the clear, cogent, and convincing standard and directs the court to proceed to appointment if incompetence is found.
• North Carolina Gen. Stat. § 35A-1213 (Nonresident guardian; resident process agent) – A nonresident guardian must designate a North Carolina resident as process agent for service.

Analysis

Apply the Rule to the Facts: You live out of state, but North Carolina allows any person to file. Your aunt is in a North Carolina facility with severe dementia, which, supported by medical records and incident documentation, can meet the “clear, cogent, and convincing” standard at hearing. Because there’s no valid power of attorney and the prior caregiver died, guardianship may be the least restrictive way to address both care and finances. If you’re appointed, you will designate a North Carolina resident process agent and, for financial control, post a bond before Letters issue.

Process & Timing

1. Who files: You (the petitioner). Where: Clerk of Superior Court, Special Proceedings division, in the North Carolina county where your aunt resides or is present. What: AOC-SP-200 (Petition for Adjudication of Incompetence and Application for Appointment of Guardian) and AOC-SP-201 (Notice of Hearing); some counties request AOC-SP-208 (Capacity Questionnaire) and an SCRA affidavit. When: File as soon as practical; the hearing is typically set a few weeks out to allow personal service.
2. Service and investigation: The sheriff personally serves your aunt; the Clerk usually appoints a guardian ad litem. The court may order a multidisciplinary evaluation if needed. Use your medical records and incident logs to support incapacity and the need for general guardianship.
3. Hearing and appointment: If the Clerk adjudicates incompetence, the case moves immediately to the appointment phase. To serve as a nonresident guardian, file the designation of a North Carolina resident process agent, take the oath, and, if handling assets, post the required bond. The Clerk then issues an order and Letters of Guardianship.

Exceptions & Pitfalls

• Jurisdiction and location: If your aunt recently moved to North Carolina or another state is her “home state,” the court may delay or decline jurisdiction under interstate guardianship rules.
• Less‑restrictive alternatives: If a valid power of attorney or workable alternative exists, the court may limit or deny guardianship.
• Competing applicants: Other relatives or a public agency may apply; the Clerk chooses the most suitable, not necessarily the first filer.
• Nonresident requirements: Do not forget to designate a North Carolina resident process agent; failure to do so can delay issuance of Letters.
• Bond issues: If you seek control over funds, be prepared to post a bond; Letters will not issue until bond and oath are completed.

Talk to a Guardianship Attorney

If you’re dealing with an out‑of‑state guardianship request for a loved one in North Carolina, 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.