What steps do I take to get emergency guardianship or a protective order to keep them safe? – North Carolina

Short Answer

In North Carolina, emergency protection for a vulnerable adult usually happens in two tracks at the same time: (1) an emergency or interim guardianship case in the clerk of superior court, and (2) an adult protective services emergency intervention brought by the county department of social services. The key is to show that the adult cannot protect themself and faces an imminent or foreseeable risk of serious harm. The court can then temporarily appoint a guardian, authorize specific protective arrangements, or order emergency services to remove the person from danger.

Understanding the Problem

The narrow question here is: under North Carolina guardianship law, what can be done on an emergency basis when a vulnerable or elderly adult appears to be held under duress and mistreated in this state, and family members in another state want that person removed to safety? The focus is on short-notice court action that can authorize someone to make decisions, arrange care, and, if needed, move the adult out of an unsafe home or facility. This is not about long-term control of the person’s life; it is about rapid, legally authorized steps to prevent immediate harm.

Apply the Law

North Carolina law allows for emergency or interim guardianship when there is reasonable cause to believe an adult is incompetent and faces an imminent or foreseeable risk of harm that requires immediate intervention. At the same time, county adult protective services may ask the district court for an emergency order for protective services if a disabled adult is in danger and cannot consent. The main forums are the clerk of superior court for guardianship and the district court for adult protective services, and both processes move on very short timelines when a true emergency exists.

Key Requirements

Incompetence or disability: There must be reasonable cause to believe the adult cannot manage personal or financial affairs or cannot adequately protect themself because of impairment.
Imminent or foreseeable risk of serious harm: There must be evidence that the adult’s physical well-being or estate faces an immediate or very near-term risk of significant harm or exploitation.
Need for immediate, court-ordered intervention: The situation must require quick court action to appoint a temporary decision-maker or authorize emergency protective services because no one else with authority is both available and willing to act.

What the Statutes Say

N.C. Gen. Stat. § 35A-1114 (Appointment of interim guardian) – allows the clerk to appoint an interim guardian when there is reasonable cause to believe a respondent is incompetent and in imminent or foreseeable danger, and immediate intervention is needed.
N.C. Gen. Stat. § 35B-18 (Special jurisdiction) – gives North Carolina courts limited power to appoint a guardian in an emergency for up to 90 days for a respondent who is physically present in North Carolina, even if another state may be the home state.
N.C. Gen. Stat. § 108A-106 (Emergency intervention for disabled adults) – allows a court, on petition by county social services, to order emergency protective services for a disabled adult when an emergency exists and no other authorized person is able and willing to arrange those services.
N.C. Gen. Stat. § 35A-1121 (Single protective arrangements) – lets the clerk order specific, one-time protective arrangements or transactions for the safety or support of an incompetent person without appointing a full guardian.
N.C. Gen. Stat. § 35A-1291 (Emergency removal of a guardian) – allows the clerk to remove an existing guardian without a prior hearing if an emergency threatens the ward’s physical well-being or estate.

Analysis

Apply the Rule to the Facts: In the scenario described, the elderly family member is physically located in North Carolina and is allegedly being mistreated and held under duress. That raises concerns about both incompetence or disability and imminent risk of harm. A North Carolina court can exercise special emergency jurisdiction to appoint an interim or emergency guardian for a short term, while the county social services department may seek an emergency protective services order to remove the person from danger and arrange temporary care. Evidence such as photos, messages, or medical information becomes crucial to show the risk of harm and the need for immediate court action.

Process & Timing

Who files: A concerned relative, friend, or other interested person may file a petition for adjudication of incompetence and application for guardianship, along with a verified motion for an interim guardian, with the Clerk of Superior Court in the North Carolina county where the elder resides. At the same time, a report can be made to the county Department of Social Services, Adult Protective Services, which may file a separate petition for emergency intervention in district court. These filings should occur as soon as the emergency is recognized.
The clerk sets a hearing on the interim guardianship motion as quickly as possible, and the law requires that the hearing occur promptly, generally within 15 days after service on the respondent. In very serious situations, APS may ask the district court for an ex parte emergency order on less than 24 hours’ notice if the disabled adult faces irreparable injury or death. County practices and scheduling can affect exact timing, but these matters are treated as high priority.
At the interim guardianship hearing, the clerk decides whether to appoint an interim guardian and defines that person’s limited powers, such as authority to move the elder, consent to medical care, or secure housing. If APS has an emergency order, APS coordinates services like removal from the unsafe setting and placement in a safe environment. Longer term, the court will hold a full incompetency and guardianship hearing to decide whether a permanent guardian is needed and what ongoing protections are appropriate.

Exceptions & Pitfalls

If the adult still has capacity to make decisions and clearly refuses help, emergency guardianship may not be available, and the court will look closely at medical and functional evidence before removing the adult’s rights.
Jurisdiction issues can arise if another state is actually the adult’s “home state”; in an emergency, North Carolina can act temporarily, but another state’s court may later take the lead, so coordination between attorneys in each state is important.
Incomplete or vague evidence of abuse or duress can delay or block relief; detailed timelines, witnesses, documents, and any prior reports to agencies help show the imminent risk needed for emergency orders.
Failure to properly serve notices, missing hearings, or not following the clerk’s instructions on forms and medical evaluations can slow the case and prolong the unsafe situation.

Conclusion

To obtain emergency guardianship or a protective order in North Carolina for a mistreated elder, the law requires a showing that the person is impaired, faces an imminent or foreseeable risk of serious harm, and needs immediate court-directed protection. The usual path combines an interim or emergency guardianship case in the clerk’s office with an adult protective services emergency intervention in district court. The most important step is to file the guardianship petition and interim motion in the proper county and contact county social services without delay.

Talk to a Guardianship Attorney

If a vulnerable adult in North Carolina may be under duress or unsafe, our firm has experienced guardianship attorneys who can help explain emergency options, coordinate with local counsel in other states, and move quickly to seek court protection. 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.