Jan272026
Guardianship Q&A Series

How do I start a guardianship case for an older relative with dementia who is living in a nursing facility? – North Carolina

Short Answer

In North Carolina, starting an adult guardianship case usually begins by filing a verified petition with the Clerk of Superior Court to have the older relative (the “respondent”) adjudicated incompetent. The petition must explain why the person cannot manage personal and/or financial affairs and must also address whether less restrictive options (like a power of attorney) were considered and why they are not enough. After filing, the clerk sets a hearing and the respondent has rights in the process, including representation.

Understanding the Problem

In North Carolina, can a family member start a court case to have an older relative in a skilled nursing facility declared incompetent so that a court-appointed guardian can make personal and financial decisions? The decision point is whether the situation requires a formal incompetency proceeding in front of the Clerk of Superior Court to create legal authority for someone else to act. The focus is on dementia-related decision-making limits and the steps needed to open the case in the correct county.

Apply the Law

North Carolina uses a specific, court-supervised process to decide whether an adult is “incompetent” and, if so, whether a guardian should be appointed. The case is typically handled as a special proceeding before the Clerk of Superior Court. The process starts with a verified petition that identifies the respondent, explains the functional problems caused by the condition (such as dementia), summarizes assets and liabilities to the extent known, lists next of kin, and explains why less restrictive alternatives will not work.

Key Requirements

  • File the correct petition with enough detail: The petition must be verified and should clearly describe the facts showing why the respondent cannot manage personal and/or financial affairs, along with basic information about assets, debts, and family members.
  • Address less restrictive alternatives: North Carolina expects the petition to identify what alternatives were considered (for example, powers of attorney or representative payee arrangements) and why they are not sufficient for the respondent’s needs.
  • Participate in the clerk’s hearing process: The clerk schedules a hearing, and the respondent has procedural rights during that hearing process, including the ability to present evidence and challenge evidence.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the next of kin believes an elderly relative in a skilled nursing facility has dementia and can no longer manage personal and financial affairs. That fact pattern typically fits the reason families file a verified petition under Chapter 35A: to ask the Clerk of Superior Court to determine incompetence and then appoint a guardian with authority to act. Because the relative is already in a facility, the petition often needs to explain what decisions are going unmet (medical consent, placement decisions, access to accounts, paying bills) and why existing documents or arrangements are not enough.

Process & Timing

  1. Who files: Any person with a legitimate interest (often a family member). Where: The Clerk of Superior Court (as a special proceeding) in the appropriate North Carolina county. What: A verified petition seeking an adjudication of incompetence that includes the required information (identity, residence, next of kin, assets/liabilities to the extent known, facts showing incompetence, and less restrictive alternatives considered). When: As soon as there is a real need for legal authority to make decisions and less restrictive options are not workable.
  2. Notice and hearing setup: After filing, the clerk sets a hearing date and the case moves into a formal process where the respondent has rights and the clerk considers evidence. In many counties, the clerk’s office has local filing requirements and checklists, so timing can vary.
  3. Decision and next step: If the clerk (or a jury, if requested in a way allowed by law) finds incompetence under the required proof standard, the clerk enters an order adjudicating incompetence and then appoints an appropriate guardian (for the person, the estate, or both, depending on what is needed).

Exceptions & Pitfalls

  • Skipping “less restrictive alternatives”: North Carolina requires the petition to identify alternatives considered and explain why they do not work. A petition that ignores this issue can be harder to prove and may be delayed.
  • Overreaching on scope: Not every case needs a “general guardian.” Sometimes the needs are primarily personal (medical/placement) or primarily financial (paying bills/benefits). Asking for broader authority than necessary can create conflict and extra court oversight.
  • Thin factual support: “Has dementia” is usually not enough by itself. The petition and evidence should connect the condition to real functional limits (missed payments, unsafe decisions, inability to understand medical choices, inability to communicate consistent preferences).
  • Facility access and records: Nursing facilities often have privacy rules. Planning ahead for how to obtain admissible information and witnesses can prevent continuances.
  • Family conflict and notice issues: Guardianship cases often involve disagreements among relatives. Listing next of kin accurately and preparing for objections can reduce delays.

For a related discussion, see how to start the guardianship process and what it takes to have an adult declared incompetent.

Conclusion

To start a guardianship case in North Carolina for an older relative with dementia in a nursing facility, a family member typically files a verified petition with the Clerk of Superior Court seeking an adjudication of incompetence and explaining why the person cannot manage personal and/or financial affairs. The petition should include basic information about the respondent, next of kin, assets and liabilities to the extent known, and why less restrictive alternatives are not sufficient. The next step is to file the verified petition with the clerk in the proper county as soon as decision-making needs cannot be handled through less restrictive options.

Talk to a Guardianship Attorney

If a family member in a nursing facility may have dementia and cannot manage medical or financial decisions, a guardianship filing can be time-sensitive and detail-driven. Our firm has experienced attorneys who can help explain the process, prepare the petition, and navigate 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.

Category: Guardianship Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.