Dec292025
Guardianship Q&A Series

How can I challenge a finding that my parent is incompetent if the case moved quickly and I didn’t understand what was happening? – North Carolina

Short Answer

In North Carolina, an incompetency finding is usually entered by the Clerk of Superior Court, and it can be challenged by filing an appeal to Superior Court for a new hearing (a “de novo” hearing). The appeal process can move fast, and the guardianship may stay in place unless the Superior Court (or Court of Appeals) orders otherwise. A practical first step is to get the file from the clerk’s office immediately and speak with a guardianship attorney about whether an appeal, a request to stay the order, or other relief fits the timeline and facts.

Understanding the Problem

In North Carolina guardianship cases, the key question is whether a family member can challenge an incompetency decision when the proceeding moved quickly and the family member did not understand the process as it unfolded. The actor is typically the Clerk of Superior Court, who conducts the incompetency hearing and enters the adjudication order if the legal standard is met. The action being challenged is the court’s finding that the parent is “incompetent,” which often triggers appointment of a guardian and can lead to major changes in where the parent lives and who can make decisions. Timing matters because the next steps often depend on what order was entered, when it was entered, and whether an interim guardian was appointed on an expedited schedule.

Apply the Law

In North Carolina, the incompetency decision is made at a hearing where the petitioner must prove incompetency by a high standard of proof. The respondent (the parent) has specific rights at the hearing, including the right to present evidence and challenge the petitioner’s evidence. If the Clerk of Superior Court enters an order adjudicating incompetence, North Carolina law allows an appeal to Superior Court for a brand-new hearing on the issue. Importantly, an appeal does not automatically stop the guardianship from operating; a separate court order is needed to pause (stay) the appointment in many cases.

Key Requirements

  • Proper hearing rights were available: The proceeding must allow the respondent to present testimony and documents, subpoena witnesses, and cross-examine witnesses. The process should be structured so the respondent’s side can be heard, not just the petitioner’s.
  • Proof standard was met: The clerk can adjudicate incompetence only if the finder of fact concludes the evidence is “clear, cogent, and convincing.” That is a higher standard than “more likely than not.”
  • Correct path to challenge the order: An order adjudicating incompetence can be appealed to Superior Court for a de novo hearing (a new hearing), and the guardianship generally continues unless a court orders a stay.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe a fast-moving case where an older parent with dementia was found incompetent and then placed in government custody and a nursing facility, while the caregiver disputes the allegations that led to removal. Under North Carolina law, the core questions become (1) whether the incompetency finding was supported by clear, cogent, and convincing evidence, and (2) whether the respondent’s hearing rights were meaningfully available, including the ability to present and challenge evidence. If the case moved quickly because an interim guardian was sought, the file should show whether the motion alleged an imminent or foreseeable risk of harm and whether the clerk’s interim order included specific findings and limited powers.

Process & Timing

  1. Who files: Typically the respondent (through counsel) files the appeal, though families often coordinate with the respondent’s attorney. Where: The Clerk of Superior Court case file is maintained in the county where the incompetency proceeding was filed, and the appeal is to the Superior Court division in the same county. What: A written notice of appeal from the clerk’s order adjudicating incompetence, and often a separate motion asking the Superior Court to stay the guardianship appointment while the appeal is pending. When: The appeal deadline is time-sensitive and can vary based on the type of order and how notice was served, so the safest approach is to act immediately after learning of the adjudication order.
  2. Next step: Obtain and review the court file quickly (petition, notices, guardian ad litem appointment, any interim guardian motion and order, hearing recording or notes if available, and the written adjudication order). This review usually identifies whether the challenge should focus on the proof presented, missing witnesses/documents, notice problems, or whether the respondent’s rights were not effectively protected.
  3. Final step: Present the case in Superior Court at the de novo hearing. Because it is a new hearing, the focus is typically on presenting competent evidence about decision-making capacity and functioning, and testing the petitioner’s evidence through cross-examination and documents.

Exceptions & Pitfalls

  • Appeal does not automatically pause the guardianship: North Carolina law allows the guardianship appointment to continue during the appeal unless the Superior Court (or Court of Appeals) orders a stay, so a stay request may be critical when placement and decision-making are changing quickly.
  • Confusing “interim guardian” with “incompetency adjudication”: An interim guardian order can be entered on an expedited schedule when risk is alleged, but it is time-limited and should include specific findings and limited powers. A separate adjudication order is what formally declares incompetence.
  • Focusing only on family disagreement: The legal issue is not whether relatives disagree about care; it is whether the evidence meets the clear, cogent, and convincing standard and whether the respondent’s hearing rights were honored.
  • Not coordinating with the respondent’s representation: The respondent is entitled to counsel or an attorney guardian ad litem. If the family member acts without understanding who represents the respondent and what positions were communicated to the clerk, filings can become inconsistent and less effective.
  • Missing evidence that should be presented at the new hearing: A de novo hearing is an opportunity to present witnesses and records that were not presented the first time (for example, caregivers, treating providers, or facility records), but those materials often take time to gather and subpoena.

Conclusion

In North Carolina, a finding that a parent is incompetent can be challenged by appealing the Clerk of Superior Court’s adjudication order to Superior Court for a de novo hearing. The key issues are whether the petitioner proved incompetence by clear, cogent, and convincing evidence and whether the respondent’s hearing rights were meaningfully available. Because an appeal usually does not stop the guardianship automatically, the next step is to file a notice of appeal with the clerk’s office promptly after the adjudication order and consider requesting a stay.

Talk to a Guardianship Attorney

If a fast-moving North Carolina guardianship case resulted in an incompetency finding and a sudden change in placement or decision-making, an attorney can help review the clerk’s file, explain the appeal path, and identify urgent deadlines and stay options. 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.