Do we have to include other relatives in the guardianship case, and what happens if someone disagrees? – North Carolina

Short Answer

In North Carolina adult guardianship cases, certain family members usually must receive notice of the proceeding, even if they are not the ones filing. If a relative disagrees, that person can appear and object, which can turn the matter into a contested case that requires evidence and a hearing before the Clerk of Superior Court. Missing required notice can delay the case or require the process to be repeated.

Understanding the Problem

In a North Carolina adult guardianship matter, a family member may ask whether other relatives must be included when seeking a guardian for an adult relative, and what happens if a relative objects. The decision point is whether the case can proceed without notifying or involving other family members, and how disagreement changes the process. The issue commonly comes up when one parent or close relative is coordinating the filing, but other next-of-kin exist and may have opinions about whether guardianship is needed or who should serve.

Apply the Law

North Carolina adult guardianship typically follows a two-step structure: (1) an incompetency proceeding to decide whether the adult needs a guardian, and (2) if the adult is found incompetent, an application to appoint a guardian (of the person, of the estate, or general). The Clerk of Superior Court (in the county where the case is filed) oversees the proceeding and controls who must receive notice beyond the respondent and the respondent’s appointed counsel or guardian ad litem. When an incompetency petition is filed, the petitioner must also mail required papers to the respondent’s next of kin identified in the petition and file proof with the clerk.

Key Requirements

Identify and notify the proper people: The respondent must be served, and the respondent’s next of kin listed in the petition generally must receive mailed notice, unless they accepted notice. The clerk can direct notice to additional people.
Follow the clerk’s service and proof rules: The petitioner must complete the required service/mailing and file proof (such as an affidavit or acceptance of notice) with the Clerk of Superior Court.
Address objections through the hearing process: A disagreeing relative can show up and oppose the incompetency finding or the choice of guardian, which can require more evidence and may change the timeline.

What the Statutes Say

N.C. Gen. Stat. § 35A-1109 (Service of notice and petition) – Requires personal service on the respondent and mailing to the respondent’s next of kin alleged in the petition within a short timeframe after filing, with proof filed with the clerk.
N.C. Gen. Stat. § 35A-1211 (Service of application, motions, and notices) – Requires service of the guardian application and related filings on the respondent, respondent’s counsel or guardian ad litem, parties of record, and others the clerk directs.

Analysis

Apply the Rule to the Facts: The facts describe a family considering adult guardianship for a relative, with one parent expected to handle the consultation and a contact mix-up during scheduling. In North Carolina, the guardianship filing itself cannot be handled “only within the family” if required notice is not given; the petition generally must list next of kin and the petitioner must mail the required papers to those next-of-kin within a short period after filing. If a relative disagrees once notified, that disagreement does not automatically block the filing, but it can make the case contested and require a fuller hearing record before the Clerk of Superior Court.

Process & Timing

Who files: A petitioner (often a close family member). Where: The Clerk of Superior Court in the county where the incompetency/guardianship case is filed. What: A petition to adjudicate incompetence and related notice materials; if incompetence is found, an application to appoint a guardian. When: The petitioner must mail copies of the required notice materials to the respondent’s next of kin alleged in the petition within five days after filing, unless a person accepted notice.
Notice and participation: The respondent must be served, and next of kin receive mailed notice. A relative who disagrees can attend, request to be heard, and raise concerns about whether guardianship is necessary or who should serve.
Hearing and decision: The Clerk of Superior Court holds the hearing and decides incompetence; if guardianship is ordered, the clerk then considers the guardian application and appoints an appropriate guardian. The clerk may require additional filings or direct that additional people receive notice, depending on the family situation and any objections.

Exceptions & Pitfalls

Incomplete “next of kin” information: Listing the wrong relatives, leaving out a close relative, or using outdated addresses can lead to delay because the clerk may require corrected notice and proof.
Assuming family agreement is required: A relative’s objection can influence the result and timeline, but the clerk can still move forward and decide the issues after proper notice and a hearing.
Confusing the two steps: In many cases the court first decides incompetence (with its own notice rules) and only then considers who should be appointed as guardian. Mixing up the notice requirements for each step can create service problems.

Conclusion

In North Carolina, adult guardianship cases generally require notifying the respondent and mailing the required papers to the respondent’s next of kin listed in the petition, with proof filed with the Clerk of Superior Court. Disagreement from a relative usually means that person may appear and object, and the clerk will decide the issues at a hearing after proper notice. A key next step is to prepare the petition with a complete next-of-kin list and mail the required notice materials within five days after filing.

Talk to a Guardianship Attorney

If a family is dealing with an adult guardianship filing and questions about which relatives must receive notice or what to do when someone objects, an attorney can help map out the required notice list, the proof needed for the clerk, and the hearing process. Call 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.