If the other parent is delaying, can I start the guardianship case myself and what role does the other parent have in the process? – North Carolina

Short Answer

Yes. In North Carolina, one parent can start an adult guardianship case without the other parent’s cooperation by filing the guardianship petition with the Clerk of Superior Court in the county where the adult lives or is present. The other parent usually has a role as “next of kin,” meaning they must receive notice and they can participate by supporting or opposing the guardianship and by asking the clerk to appoint a different guardian.

Understanding the Problem

In North Carolina adult guardianship, the decision point is whether one parent can file the case when the other parent delays or refuses to help. The guardianship process involves asking the Clerk of Superior Court to decide whether the adult is legally “incompetent” and, if so, to appoint a guardian to make certain medical and/or financial decisions. A related issue is what part the other parent plays in the case once it is filed, including notice, participation in hearings, and whether the other parent can object to the proposed guardian.

Apply the Law

Adult guardianship cases in North Carolina are handled in a special proceeding before the Clerk of Superior Court. The person starting the case (the petitioner) files a petition asking the clerk to adjudicate the adult’s competency and, if needed, appoint a guardian. Even if one parent files alone, the process still requires formal notice to the adult (the respondent) and mailed notice to the respondent’s next of kin listed in the petition, which commonly includes both parents.

Key Requirements

Proper filing and venue: The case must be filed with the Clerk of Superior Court in the correct county, using the required guardianship petition and initial notice of hearing.
Required notice: The respondent must be personally served, and the petitioner must mail the petition, notice of rights, and initial hearing notice to the next of kin identified in the petition within a short time after filing (unless the person accepts notice).
Participation rights for family members: The other parent, as next of kin, can receive notice, appear, provide information to the clerk, and support or oppose the request or the proposed guardian.

What the Statutes Say

N.C. Gen. Stat. § 35A-1109 (Service of notice and petition) – Requires personal service on the respondent and requires the petitioner to mail the petition, notice of rights, and initial hearing notice to the next of kin within five days after filing (unless notice is accepted).

Analysis

Apply the Rule to the Facts: The facts describe an adult with significant cognitive limitations who is believed unable to make safe medical or financial decisions, and who lives in a group home. Under North Carolina procedure, one parent can still start the guardianship case by filing the petition with the Clerk of Superior Court, even if the other parent delays. After filing, the other parent typically becomes involved because the petitioner must send the required mailed notice to the adult’s next of kin identified in the petition, which usually includes both parents.

Process & Timing

Who files: One parent (or another interested person) as petitioner. Where: Clerk of Superior Court (Special Proceedings) in the county where the adult lives or is present in North Carolina. What: An incompetency/guardianship petition, plus the initial notice of hearing and the required notice of rights for the respondent (forms and local cover sheets vary by county). When: File when a guardianship decision is needed; after filing, the petitioner must mail copies to the listed next of kin within five days unless notice is accepted.
Service and appointments: The respondent must be personally served. The clerk also ensures the respondent has counsel or a guardian ad litem as required by North Carolina procedure so the respondent’s rights are represented during the case.
Hearing and order: The clerk holds a hearing to decide competency and, if appropriate, enters an order appointing a guardian (guardian of the person, guardian of the estate, or general guardian), and issues the documents needed for the guardian to act.

Exceptions & Pitfalls

Mixing up “adult guardianship” and “minor guardianship” rules: The notice rules and the exact filing documents can differ depending on whether the person is an adult or a minor; filing under the wrong process can delay the case.
Incomplete next-of-kin information: Leaving out a parent or using an outdated address can trigger re-notice and continuances. Guardianship cases often slow down because notice was not properly completed and documented.
Assuming the other parent can “block” filing: The other parent can object and can ask the clerk to appoint someone else, but delay or refusal to cooperate does not automatically prevent the petition from being filed and heard.

Conclusion

In North Carolina, one parent can start an adult guardianship case by filing the petition with the Clerk of Superior Court, even if the other parent delays. The other parent typically plays a formal role as next of kin: they must receive notice and can appear to support or oppose the guardianship or the proposed guardian. A key early deadline applies after filing: mail the petition and required notices to next of kin within five days unless notice is accepted.

Talk to a Guardianship Attorney

If a parent is trying to get guardianship for an adult child and the other parent is delaying, an attorney can help move the case forward, complete notice correctly, and prepare for the clerk’s hearing. 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.