Dec32025
Guardianship Q&A Series

How can I be appointed guardian of both the person and the estate for my adult sibling who is in a care facility with mental health issues? – North Carolina

Short Answer

In North Carolina, a sibling can ask the clerk of superior court to be appointed guardian of the person and of the estate (a “general guardian”) for an adult who cannot manage personal or financial affairs because of mental health conditions. This usually requires an incompetency case (or use of an existing one), followed by a guardianship application, a hearing, and proof that guardianship is necessary and less-restrictive options are not enough. Any prior guardianship, power of attorney, or out-of-state orders must be disclosed and may affect the process.

Understanding the Problem

The question here is how a North Carolina sibling can become guardian of both the person and the estate for an adult family member who lives in a mental health care facility, has ongoing psychiatric issues, and appears unable to manage life decisions or finances. The issue focuses on one decision point: what legal steps North Carolina law requires for appointment as guardian when the adult is already in treatment, reportedly indigent, and there may have been a prior guardianship or power of attorney in another jurisdiction. The discussion centers on when the clerk of superior court may appoint a sibling as guardian and what must be shown and filed to reach that result.

Apply the Law

Under North Carolina law, adult guardianship is a two-step process: (1) an adjudication of incompetence, and (2) appointment of a guardian (of the person, of the estate, or a general guardian). The clerk of superior court handles these cases. The core questions are whether the adult meets the legal standard of incompetence, whether North Carolina has jurisdiction, whether guardianship is necessary and less-restrictive alternatives are inadequate, and who is appropriate to serve as guardian.

Key Requirements

  • Legal incompetence: The adult must be found legally incompetent through the clerk’s proceeding, meaning the person cannot manage personal or financial affairs due to mental illness or similar conditions, even with help, and less-restrictive options do not meet the person’s needs.
  • Proper petition and application: A verified petition for adjudication of incompetence must be filed, and then an application for appointment of a guardian must set out relationships, next of kin, requested type of guardianship (person, estate, or both), and information about assets, income, and debts.
  • Jurisdiction, venue, and suitability of the guardian: North Carolina must have authority to hear the case, venue must be proper, and the proposed guardian must be appropriate, willing, and able to serve; the clerk may consider conflicts among siblings and any existing or prior guardianship or power of attorney.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the proposed ward is an adult, inpatient at a North Carolina mental health care facility, responsive but with mental health issues, and reportedly indigent. If there is no current North Carolina incompetency and guardianship case, a petitioner would first seek adjudication of incompetence with the clerk of superior court in the proper county, explaining the mental health history, functional limits, and why options like powers of attorney or representative payee arrangements are not enough. Because the sibling wants authority over both personal decisions and finances, the application would request appointment as general guardian (guardian of the person and estate), disclosing the prior guardianship or power of attorney in another jurisdiction and any known benefits such as Social Security. The clerk would consider evidence from treatment providers and the facility, as well as any input from other siblings, to decide whether the adult is incompetent and whether the requesting sibling is suitable to serve.

Process & Timing

  1. Who files: Any interested person, including a sibling, may file. Where: With the clerk of superior court in the county where the adult has been or will be adjudicated incompetent (typically the county of residence or of the existing case). What: A verified “Petition for Adjudication of Incompetence” and, either with it or after the adjudication, an “Application for Appointment of Guardian” identifying whether guardianship of the person, estate, or both is sought. When: As soon as it becomes clear that the adult cannot manage personal or financial affairs and that less-restrictive options are not sufficient.
  2. After filing, the clerk issues notices, appoints a guardian ad litem or counsel for the respondent, and sets a hearing. There may be an evaluation ordered and input from treatment providers. Timing varies by county, but the hearing is typically held within several weeks to a few months, depending on court schedules and service of notice.
  3. If the clerk (or a jury, if requested) finds the adult incompetent, the clerk enters an order of incompetence and then an order appointing a guardian. If the sibling is appointed as guardian of the person and estate, the clerk issues letters of guardianship. The guardian then must qualify, may need to post a bond for estate management, and must follow ongoing reporting and accounting requirements.

Exceptions & Pitfalls

  • If another state already has a guardianship in place, or if a prior guardianship order still exists, North Carolina jurisdiction may be limited or may require coordination or transfer under Chapter 35B rather than starting fresh.
  • If the adult can manage with supports such as a valid power of attorney, representative payee, or voluntary services, the clerk may decide that full guardianship is not necessary or may limit guardianship to certain areas.
  • Leaving out information about next of kin, prior guardianship, powers of attorney, or existing benefits can delay or complicate the case; complete disclosure in the petition and application is important.
  • For an indigent ward with little or no estate, the clerk may still appoint a guardian of the person but may tailor or limit estate guardianship obligations; failing to understand reporting and bond requirements can create compliance problems for the new guardian.
  • Service and notice mistakes—such as not properly serving the respondent or required relatives—can lead to continuances or, in some situations, challenges to the orders.

Conclusion

To be appointed guardian of both the person and the estate for an adult sibling in a North Carolina care facility, a petitioner must proceed through the clerk of superior court using the statutory incompetency and guardianship process. The case must show that the adult is legally incompetent, that North Carolina is the proper forum, and that guardianship is needed because less-restrictive options do not meet the sibling’s needs. The key next step is to file a verified incompetency petition and guardianship application with the appropriate clerk, clearly explaining the mental health history, functional limits, and requested scope of guardianship.

Talk to a Guardianship Attorney

If a family member is trying to obtain guardianship of the person and estate for an adult sibling in a North Carolina care facility, our firm has experienced attorneys who can help explain options, court expectations, 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.

Category: Guardianship Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.