Dec292025
Guardianship Q&A Series

Can I be forced to stay in a nursing home, and how do I get released to return home with a safe plan? – North Carolina

Short Answer

In North Carolina, an adult usually cannot be forced to stay in a residential facility unless a court order or a legal authority (most often a guardian) has the power to decide the person’s residence, or the person is being held under a separate legal process (such as certain mental health holds). When a guardian has been appointed, the practical path to going home usually runs through the Clerk of Superior Court: asking the court to restore competency, or to change/limit the guardianship so the person can make living and discharge decisions. At the same time, discharge planning should focus on a clear, written “safe plan” that addresses medical needs, therapy, home supports, and follow-up care.

Understanding the Problem

In North Carolina, can an adult who does not want to live in a nursing home or adult care home be kept there because a guardian was appointed after a missed court date, and what steps can be taken to leave the facility and return home with a plan that addresses safety and care needs? This question comes up when a hospital transfer turns into an ongoing placement, the facility focuses on “risk” rather than rehabilitation, and there is concern that a guardian or agency will control housing decisions and property while the person remains in care.

Apply the Law

North Carolina law draws an important line between (1) a facility’s ability to provide care and follow discharge rules and (2) a court-appointed guardian’s authority to make decisions for someone who has been adjudicated incompetent. If a court has adjudicated an adult incompetent and appointed a guardian, the guardian may control certain personal decisions, and the Clerk of Superior Court (estates division) oversees requests to restore competency or change the guardianship. Separately, licensed adult care homes must follow resident-rights and discharge-notice rules, including advance written notice and an appeal process when the facility initiates a discharge.

Key Requirements

  • Legal authority to decide residence: Whether there is a valid guardianship or other legal process that gives someone else the power to decide where the adult lives and whether the adult can leave.
  • A court process to change the situation: A request to the Clerk of Superior Court to restore competency or otherwise modify what the guardian can control, supported by facts and evidence about current abilities and needs.
  • A workable “safe plan” for going home: A written plan that addresses mobility/therapy, home safety, supervision (if needed), medications, follow-up appointments, and supports so discharge is practical and defensible.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe a transfer from a hospital to a residential facility against the person’s wishes, followed by learning that a court appointed a guardian after a missed hearing. That combination matters because a court-appointed guardian can be the key reason the facility refuses to release the resident to return home, even if the resident objects. To get released to return home with a safe plan, the legal work typically focuses on quickly reviewing the guardianship file and then asking the Clerk of Superior Court to restore competency or otherwise change the order so the resident can make living and discharge decisions, supported by medical and functional evidence and a detailed discharge plan.

Process & Timing

  1. Who files: The ward (through counsel), the guardian, or another “interested person,” depending on the strategy. Where: The Clerk of Superior Court (estates division) in the county with the guardianship file. What: A verified motion/petition in the guardianship/incompetency case asking for restoration to competency (and, in appropriate cases, related relief about decision-making while the motion is pending). When: Under the restoration statute, the clerk generally sets a hearing so that it falls not less than 10 days and not more than 30 days from service of the motion and notice of hearing, unless the clerk finds good cause to do otherwise.
  2. Build the “safe plan” evidence file: Gather recent medical notes, therapy evaluations, a realistic home-safety plan, and documentation of available supports (for example: outpatient or home health therapy, durable medical equipment, family/friend check-ins, meal delivery, medication management tools). In practice, clear documentation that the plan addresses mobility limits and fall risk often makes discharge discussions more productive.
  3. Hearing and order: At the hearing, the ward has a right to counsel and can request a jury. If the clerk (or jury) finds competency restored, the clerk enters an order restoring rights so the person can manage affairs again. If restoration is denied, the order can be appealed as allowed by statute.

Exceptions & Pitfalls

  • Guardianship vs. facility rules: Even if a facility must follow resident-rights laws, a guardian’s authority over residence can still block an “against medical advice” departure; the practical fix is often a court order changing competency/authority, not just arguing with the facility.
  • Missed hearing and notice problems: When a person missed the incompetency hearing, the court file may show how notice was served and whether required steps were followed. A strategy may change depending on whether the issue is (a) restoring competency now or (b) challenging how the earlier order happened.
  • Appeal does not automatically stop the guardianship: An appeal of an incompetency order generally does not, by itself, stop the guardian from acting unless a court orders a stay. That timing issue can matter when immediate discharge is the goal.
  • Property fears and mixed authority: A guardian’s powers depend on the type of guardianship and the court’s letters/orders. Assuming a guardian can “take the house” without reviewing the actual order can lead to missed opportunities to limit powers or require court oversight for major transactions.
  • Unsafe plan equals “no discharge”: Vague plans (for example, “a friend will help sometimes”) often fail. Plans work better when they name concrete supports (equipment, therapy schedule, transportation, home modifications, and who checks in daily).

Conclusion

In North Carolina, a person may be kept in a facility when a court-appointed guardian has authority to make residence and care decisions, even if the resident wants to go home. The most direct legal path to release is often to file a restoration-to-competency motion in the guardianship case with the Clerk of Superior Court and prepare a detailed safe discharge plan supported by medical and therapy evidence. The restoration statute typically requires a hearing timeline tied to service, commonly within 10 to 30 days.

Talk to a Guardianship Attorney

If a guardian was appointed and a facility will not discharge a resident to return home, a fast review of the court file and a plan to seek restoration or changes to the guardianship can make a real difference in timing and options. Our firm has experienced attorneys who can help explain the process, gather the right records, and present a safe plan to the court. 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.