How can I petition the court to become guardian of my adult sibling currently under a social worker’s care? – North Carolina

Short Answer

In North Carolina, a sibling can ask the Clerk of Superior Court to remove a current guardian and appoint a new one if the change is in the adult’s best interests and legal grounds are met. If the existing guardianship was created in another state, North Carolina typically must first accept a transfer of the case under interstate guardianship rules before it can replace the guardian. Once in North Carolina, the Clerk can remove the current guardian and appoint the sibling as guardian of the person to make health care and placement decisions, subject to any limits in the order. Procedures and timing vary if another state still has jurisdiction.

Understanding the Problem

In North Carolina, can a sibling ask the Clerk of Superior Court to remove a court-appointed social worker as guardian and be appointed guardian of the person with authority over health care, daily care, and possible relocation when the existing guardianship was entered in another state and the adult now resides in a facility outside that appointing state?

Apply the Law

North Carolina guardianship matters are heard by the Clerk of Superior Court. Replacing a guardian requires either: (1) bringing the guardianship into North Carolina through an interstate transfer if another state appointed the current guardian, or (2) establishing North Carolina jurisdiction under the interstate guardianship statute. After North Carolina has the case, the Clerk may remove the current guardian and appoint a new one if statutory grounds are shown and the change best serves the adult. A guardian of the person’s authority can include health-care decisions and residential placement, but an existing health care agent’s authority continues unless a court suspends it.

Key Requirements

• Jurisdiction and venue: Confirm North Carolina is the right forum. If another state appointed the guardian, seek a transfer to North Carolina or meet interstate jurisdiction standards before asking to replace the guardian here.
• Legal basis to replace the guardian: Show reasons such as mismanagement, failure to act, unsuitability, or that a change will provide better care and maintenance for the adult.
• Suitability of the petitioner: Demonstrate the sibling can perform guardian duties, understands the adult’s needs, and is appropriate to serve (the Clerk generally prefers a suitable individual over an agency when possible).
• Notice and hearing: Provide required notice to interested persons; the Clerk holds a hearing and considers evidence before removal/appointment.
• Scope of authority: If seeking guardian of the person, specify health-care decision-making and placement authority; if a health care agent exists, a court order is needed to suspend that agent’s authority.

What the Statutes Say

• North Carolina Gen. Stat. § 35A-1290 (Removal of guardian) – Sets grounds and process to remove a guardian and appoint a successor.
• North Carolina Gen. Stat. § 35B-30 (Transfer to another state) – Allows transfer of a guardianship from one state to another when conditions are met.
• North Carolina Gen. Stat. § 35B-31 (Accepting transfer from another state) – North Carolina’s process to accept a transferred guardianship and then review it.
• North Carolina Gen. Stat. § 32A-22 (Effect of guardian on health care agent) – A guardian of the person must obtain a court order to suspend an existing health care agent’s authority.

Analysis

Apply the Rule to the Facts: Because a professional guardian was appointed in another jurisdiction and the adult sibling resides elsewhere, the first step is to bring the case under North Carolina’s authority—typically by asking the appointing state to transfer the guardianship to North Carolina and then petitioning a North Carolina Clerk to accept it. After acceptance, the sibling can seek removal of the current guardian based on best interests and statutory grounds and request appointment as guardian of the person to make health-care and placement decisions, including relocation if authorized in the order.

Process & Timing

1. Who files: The sibling (interested person). Where: Clerk of Superior Court in the North Carolina county that is appropriate under the interstate guardianship rules (often where the adult is physically present or has significant connections). What: If the guardianship is out-of-state, pursue a transfer: petition the appointing court to transfer (NC counterpart will later accept); in North Carolina, file a petition to accept transfer and, after acceptance, a petition/motion to remove the current guardian and an application to be appointed (AOC-SP-200/AOC-E-206 and related orders such as AOC-E-406; use the most current AOC forms). When: After North Carolina accepts a transfer, the court generally reviews whether modification is needed within about 90 days.
2. Upon notice, the Clerk schedules hearings. Timing varies by county; many matters are heard within weeks. Serve interested persons as directed; for post-appointment motions, service typically follows Rule 5.
3. If removal is granted, the Clerk enters an order appointing the sibling as guardian of the person and issues Letters of Guardianship. If estate powers are sought, expect a bond and periodic accountings.

Exceptions & Pitfalls

• If another state still has jurisdiction or a competing petition is pending there, North Carolina may not act until the case is transferred or jurisdictional conditions are met.
• Registration of an out-of-state order in North Carolina permits the current guardian to act here but does not change who the guardian is; a transfer and then a removal/appointment proceeding are usually required to replace the guardian.
• A motion to “modify” a guardianship generally cannot be used to permanently change the guardian; use the removal statute when consent is lacking.
• If a health care agent exists, a newly appointed guardian of the person must seek a court order to suspend the agent’s authority before overriding medical decisions.
• Choose the correct county and follow notice/service rules; missteps can delay hearings or result in dismissal.

Talk to a Guardianship Attorney

If you’re dealing with replacing an out-of-state guardian and seeking authority over health care and placement, 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.