Dec202025
Guardianship Q&A Series

How can I challenge a social services adult guardianship if the information in their petition is wrong or outdated? – North Carolina

Short Answer

In North Carolina, an adult guardianship case starts with an incompetency petition filed with the Clerk of Superior Court. If the petition contains wrong or outdated information, the usual way to challenge it is to respond quickly through the respondent’s attorney or court-appointed guardian ad litem, gather current records and witnesses, and present that updated evidence at the incompetency hearing. Tight deadlines apply in the early phase, including a short window to request certain evaluations after service, so fast action matters.

Understanding the Problem

In North Carolina, when a county social services agency files an adult incompetency petition to seek guardianship, what happens if key statements in the petition are wrong, incomplete, or based on old events? Can the respondent challenge the petition in the Clerk of Superior Court before a guardianship is put in place, and how does corrected information get in front of the clerk in time for the hearing? The practical issue is moving fast enough to correct the record while the case is pending and before the clerk decides whether the respondent is incompetent and, if so, what kind of guardianship (if any) is needed.

Apply the Law

North Carolina adult guardianship cases typically begin as an incompetency proceeding filed with the Clerk of Superior Court in the county where the respondent resides or is present. The clerk must hold a hearing before adjudicating incompetence, and the respondent has rights to counsel/guardian ad litem, to gather and present evidence, and to challenge what the petitioner claims. If the petition relies on outdated or incorrect information, the legal focus is whether current evidence shows the respondent can manage personal affairs and/or property (or can do so with supports or a limited guardianship), and whether the procedure (notice, service, and representation) is being followed.

Key Requirements

  • Representation and stated wishes: The respondent is entitled to counsel of choice or an attorney guardian ad litem, and that attorney must meet with the respondent and communicate the respondent’s wishes to the clerk.
  • Timely evidence gathering: The respondent can gather documents and require witnesses to appear, including medical providers and others with current information about functioning and decision-making.
  • Hearing on a set schedule: The clerk sets the incompetency hearing on a relatively short timeline after service, so corrected information must be organized and presented quickly.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The scenario involves a social services agency seeking an adult guardianship and concern that the petition relies on wrong or outdated information. Under North Carolina practice, the most direct way to challenge that is through the respondent’s counsel or guardian ad litem by gathering current medical, functional, and support information and presenting it to the Clerk of Superior Court at the incompetency hearing. Because the hearing is set quickly after service, delay can make it harder to correct the record before the clerk rules.

Process & Timing

  1. Who files: Usually the respondent (through retained counsel) or the court-appointed attorney guardian ad litem raises the challenges. Where: Before the Clerk of Superior Court in the county where the case is pending. What: A written response and/or motions (often asking the clerk to consider updated records, address service/notice problems, or limit what is requested), plus subpoenas for witnesses and records when needed. When: Start immediately after service because the hearing is generally scheduled within 10 to 30 days after service; a written request for a multidisciplinary evaluation must be made no later than 10 days after service.
  2. Build the updated record: Collect the most current medical/mental health records, care plans, discharge summaries, and statements from people who observe daily functioning. Identify what in the petition is wrong (dates, diagnoses, incidents, current supports) and prepare a concise timeline showing what has changed since the events the petition describes.
  3. Present corrected information at the hearing: The clerk decides incompetency after hearing evidence. The respondent’s attorney/guardian ad litem can cross-examine the petitioner’s witnesses, present medical or lay witnesses with current information, and argue for less restrictive alternatives (including a limited guardianship) when supported by the evidence.

Exceptions & Pitfalls

  • Confusing “wrong petition facts” with the legal question: The clerk’s decision turns on current capacity and need for a guardian, not whether the petitioner made mistakes. The challenge should translate inaccuracies into why the legal standard is not met or why a less restrictive option fits.
  • Missing short deadlines: Waiting to hire counsel, request an evaluation, or subpoena current providers can leave the clerk with only the petitioner’s older information.
  • Notice and service problems: If the respondent did not receive the petition, hearing notice, or notice of rights properly, or if key parties were not served, the respondent’s attorney/guardian ad litem can raise those issues with the clerk promptly, because service defects can affect scheduling and fairness.
  • Travel and “out-of-county” logistics: Even when counsel is retained from another area, the case remains in the county where it was filed, and local scheduling practices can move quickly. Early coordination with the clerk’s office and the guardian ad litem can reduce avoidable trips.

Conclusion

In North Carolina, a social services adult guardianship case typically rises or falls at the incompetency hearing before the Clerk of Superior Court. If the petition relies on wrong or outdated information, the core strategy is to act fast, use the respondent’s counsel or court-appointed guardian ad litem to gather current records and witnesses, and present that updated evidence at the hearing. The key timing issue is that the hearing is usually set within 10 to 30 days after service, and a multidisciplinary evaluation request generally must be filed within 10 days of service.

Talk to a Guardianship Attorney

If a social services adult guardianship petition contains wrong or outdated information and quick action is needed before the hearing, our firm has experienced attorneys who can help explain options and timelines and coordinate next steps with local court processes. 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.