How do I oppose a petition to appoint my spouse’s relative as guardian and ask the court to consider me instead? – North Carolina

Short Answer

In North Carolina, guardianship decisions are made by the Clerk of Superior Court, and a spouse can ask to be appointed instead of another family member by filing a written response and a competing application to serve as guardian in the same case. The clerk focuses on the allegedly incompetent adult’s needs and protection, and on whether the proposed guardian is fit and appropriate for the role. Missing notice, incomplete paperwork, or concerns about financial abuse are important issues to raise early and in writing so the clerk has them for the hearing.

Understanding the Problem

In a North Carolina adult guardianship case, can a spouse oppose a petition asking the Clerk of Superior Court to appoint the spouse’s relative as guardian and instead ask the clerk to consider appointing the spouse? The decision point is whether the spouse should be appointed as guardian (of the person, of the estate, or both) rather than the relative named in the petition. The trigger is the filing of the guardianship petition and the scheduling of the clerk’s hearing, where the clerk reviews the filings, notice, and evidence before choosing who will serve.

Apply the Law

North Carolina adult guardianships are handled through the Office of the Clerk of Superior Court under Chapter 35A. After an incompetency proceeding (or alongside it), a party can seek appointment of a guardian by filing an application with the clerk that identifies the respondent, family members, basic financial information (to the extent known), and the type of guardianship requested. If another person has already filed to have a different individual appointed, the spouse can oppose that request and file a competing application so the clerk can compare the candidates and decide who is fit and appropriate.

Key Requirements

Timely participation in the case: File a written response/objection and a competing application early enough that the clerk can consider it before or at the hearing.
A complete application for appointment: Provide the information the clerk expects in an application, including the type of guardian sought (person, estate, or general guardian) and why the spouse should be appointed.
Fitness and suitability to serve: Present facts showing the spouse can act responsibly and in the respondent’s best interests, especially if the case involves concerns about money management or alleged exploitation.

What the Statutes Say

N.C. Gen. Stat. § 35A-1210 (Application for appointment of guardian) – Allows an interested person to apply to the clerk to have a guardian appointed and lists the information the application should include, including who the applicant recommends.

Analysis

Apply the Rule to the Facts: Here, the reported involvement of Adult Protective Services and an allegation of financial abuse connected to the spouse makes the “fitness and suitability” issue central. A well-supported objection should explain why appointing the spouse’s relative may not protect the respondent as well as another option, and why the spouse should be considered despite the allegation. The objection should also address process problems described in the facts (unclear APS identifying information and lack of paperwork) by asking the clerk to require proper documentation and to base the decision on evidence presented in the guardianship case, not informal statements.

Process & Timing

Who files: The spouse (or the spouse’s attorney). Where: Office of the Clerk of Superior Court in the county where the guardianship/incompetency case is filed. What: (1) a written objection/response opposing the proposed guardian and (2) a competing “application for appointment of guardian” asking the clerk to appoint the spouse instead and stating whether a guardian of the person, guardian of the estate, or general guardian is requested. When: File as soon as possible after receiving notice and before the scheduled hearing, so the clerk has time to review and provide notice if needed.
Prepare for the hearing: Gather concrete, organized evidence tied to the clerk’s decision: the spouse’s plan for care and decision-making, the spouse’s ability to handle finances (or a request to limit authority by seeking only a guardian of the person), and any documents that address the financial-abuse allegation (for example, bank records, power-of-attorney history, or third-party oversight options). Also gather evidence raising concerns about the proposed relative’s suitability, if any, using specific facts rather than general conflict.
Attend and present evidence: At the clerk’s hearing, present the objection and competing application and ask the clerk to make an appointment decision based on the respondent’s needs and the proposed guardian’s reliability. If the clerk appoints a guardian, the clerk issues letters of appointment that define the guardian’s authority.

Exceptions & Pitfalls

Not filing a competing application: Objecting without also filing a complete application can leave the clerk with no formal request to appoint the spouse and no required information about the spouse’s proposed role.
Mismatch between concerns and the type of guardianship requested: If the case centers on money concerns, the clerk may scrutinize anyone seeking control of finances. A narrower request (such as guardian of the person only) or safeguards (bonding, restrictions, accounting oversight where applicable) can matter, depending on the case facts.
Relying on APS process complaints instead of evidence: Concerns about bias or missing paperwork may not, by themselves, determine who gets appointed. The filing should keep the focus on admissible facts the clerk can act on in the guardianship case, including the respondent’s needs and the candidates’ ability to meet them.
Notice/service problems: If proper notice was not given, raise that promptly and ask the clerk to correct it, because guardianship orders entered without required notice can create avoidable complications.

Conclusion

In North Carolina, a spouse can oppose a petition seeking to appoint the spouse’s relative as guardian by filing a written objection and a competing application for appointment of guardian with the Clerk of Superior Court and then presenting evidence at the hearing about fitness, suitability, and the respondent’s needs. The key threshold is whether the clerk finds the spouse is an appropriate person to serve in the requested role (person, estate, or both). The most important deadline is the hearing date—file the objection and application before the scheduled hearing.

Talk to a Guardianship Attorney

If a petition seeks to appoint a spouse’s relative as guardian and there are concerns about finances or the fairness of the process, an attorney can help file a proper objection, submit a competing application, and prepare evidence 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.